On May 26, 2023, the Supreme Court of the United States (SCOTUS) released their opinion on Sackett V. EPA, a highly anticipated case challenging the reach of Section 404 of the Clean Water Act (CWA). On August 29, 2023 the Environmental Protection Agency and the US. Army Corps of Engineers released a statement with indications that the SCOTUS ruling will be incorporated into the already established Biden 2023 rules for WOTUS (Biden WOTUS). In those areas where the Biden WOTUS rules conflict with the new guidance, the new guidance will replace it. As expected, the significant nexus test has been removed from the new guidance. Jurisdictional wetlands will now require a “continuous surface water connection” to a jurisdictional stream and similarly, only streams with a “relatively permanent flow” would be considered jurisdictional. Although it is still unknown what constitutes a “continuous surface water connection” and “relatively permanent flow”, this new guidance is effective immediately. Final interpretation of these two components is likely to occur in the near future. When those are resolved, the USACE will once again begin reviewing Approved Jurisdictional Determinations (AJDs).
Geotechnology will post the new WOTUS guidance at this link when it becomes available and will continue to provide quality consultation with stakeholders as they interpret and engage this new rule. Contact Us to ask a question or provide feedback.