to pending cases such as Texas v. EPA, No. 3:23-CV-00017 (S.D. Tex., filed Jan. 18, 2023) and Kentucky Chamber of Com. v. EPA, No. 3:23-CV-00008-GFVT (E.D. Ky., filed Feb. 22, 2023), which are challenges to the 2023 regulations to be successful. Ultimately, Congress will need to step in to create a less ambiguous definition of WOTUS, and the Agencies will need to promulgate a set of consistent and unambiguous regulations, which will give clear direction to all interested parties and avoid extensive litigation.Pending either some action by Congress to clarify the statutory definition or further regulatory action consistent with the holding in Sackett, interpretation of the extent of the Agencies’ jurisdiction is in a state of limbo, and it is probable that there will be inconsistencies among the Corps' districts in their jurisdictional determinations. 33 U.S.C. § 1311(a). 33 U.S.C. § 1319. Clean Water Act § 502(12), 33 U.S.C. § 1362(12).Id. 33 U.S.C. 1362((7). 40 C.F.R. § 6.102 (1979). 33 C.F.R. § 328.3 (2015). 33 C.F.R. § 328.3 (2019). 33 C.F.R. § 328.3 (2023).American Farm Bureau Fed'n v. EPA, No. 3:23-CV-20 (S.D. Tex., filed Jan. 18, 2023); Kentucky Chamber of Com. v. EPA, No. 3:23-CV-00008-GFVT (E.D. Ky., filed Feb. 22, 2023).Kentucky v. EPA, No. 3:23-CV-00007 (E.D. Ky., filed Feb. 22, 2023); Texas v. EPA, No. 3:23-CV-00017 (S.D. Tex. Filed Jan. 18, 2023); W. Virginia v. EPA, No. 3:23-CV-00032-PDW-ARS (E.D.N.D., filed Feb. 16, 2023).Sackett v. EPA, 8 F.4th 1075, 1092-93 (9th Cir. 2021) rev'd 598 U.S. ___ (2023).Sackett v. EPA, 2023 U.S. LEXIS 2202 at *39.Id. at *37.Id.Sackett, at *39, citing Rapanos, 547 U.S. at 755. 33 C.F.R. § 328.3 (2020); 33 U.S.C. § 1251 et seq. 33 C.F.R. §328.3(a)(ii).

to be a continuous surface connection. Its reliance on photographs also appears to make indistinguishability of wetlands and other waters a requirement for Clean Water Act regulation.It remains to be seen how other lower courts will interpret Sackett's language about "continuous surface connection" and the indistinguishability of wetlands and waters. Where the courts ultimately land on this issue will have significant practical consequences for property owners across the country.The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.Reprinted with permission fromLaw360.[1] Sackett v. Environmental Protection Agency, 598 U.S. at 651 (2023).[2] Id. at 676.[3] Id. at 678-79 (quoting Rapanos v. United States , 547 U.S. 715, 742 (2006)).[4] 33 CFR 328.3(a)(4), -(c)(2); 40 CFR 120.2(a)(4), -(c)(2).[5] Final Rule, Revised Definition of "Waters of the United States," 88 Fed. Reg. 3004, 3096 (Jan. 18, 2023) (citing U.S. EPA & U.S. Army Corps of Engineers, Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States (Dec. 2, 2008)).[6] Sackett, 598 U.S. at 672, 676.[7] United States v. Andrews , 677 F.Supp.3d 74 (D. Conn. 2023).[8] Id. at 87-88.[9] Lewis v. United States , 88 F.4th 1073 (5th Cir. 2023).[10] Id. at 1078.[11] Glynn Environmental Coalition Inc. v. Sea Island Acquisition LLC , 2024 WL 1088585 (S.D. Ga. 2024).[12] 11th Cir., March 7, 2024.[13] Id. *5.

lands in the field.Challenges for State Law and RegulationAlthough the Sackett Court removed federal protection from wetlands, it acknowledged that the states could provide that protection. Justice Alito pointedly noted that "[r]egulation of land and water use lies at the core of traditional state authority"; because the CWA anticipates a partnership between the states and the federal government, the states "can and will continue to exercise their primary authority to combat water pollution by regulating land and water use."And North Carolina exercised its authority to provide greater state protection for its wetlands until June 27, 2023. On that date, the North Carolina General Assembly overrode a gubernatorial veto to pass Senate Bill 582, entitled "An Act to Make Various Changes to the Agricultural and Wastewater Laws of the State" (the "2023 NC Farm Act"). The 2023 NC Farm Act restricts the state definition of "wetlands" to those "that are waters of the United States as defined by 33 C.F.R. § 328.3 and 40 C.F.R. § 230.3,"i.e., only those WOTUS regulated by the Agencies. The General Assembly directed the Environmental Management Commission ("EMC"), the state rule-making authority, to implement this definition of "wetlands" until the EMC formally adopts a permanent rule to amend the existing definition of wetlands. Until then, wetlands in North Carolina are only those the federal governmentrecognizes and protects as WOTUS, unless a state statute (for example, the Coastal Area Management Act) specifically provides otherwise.The combination of the Sackett opinion, the 2023 NC Farm Act, and the Sackett Rule cast doubt as to whether the state's isolated wetlands rules remained in effect, despite having a separate regulatory definition that was not by the 2023 Farm Act. The EMC Chair requested the North Carolina Department of Environmental Quality ("NCDEQ") to advise on the assimilation of federal and state definitions. At the EMC's meeting in September, the NCDEQ Division of Water Res

s resumption of processing requests for approved jurisdictional determinations will be welcome news to projects that have had to wait for the last three months in regulatory limbo, uncertain whether their project would require a CWA Section 404 permit. EPA Pre-Publication Notice, Amendments to the “Revised Definition of ‘Waters of the United States’”, at pp. 10, 18-20 (Aug. 29, 2023) available at https://www.epa.gov/system/files/documents/2023-08/Pre-publication%20Version%20of%20the%20Final%20Rule%20-%20Amendments%20to%20the%20Revised%20Definition%20of%20Waters%20of%20the%20United%20States.pdf.at pp. 10, 18-20 (See proposed revision to 40 CFR §120.2(a)(4) and 33 CFR §328.3(a)(4)).Id. at pp. 2-4.Id. at pp. 10-11.Id.Id. at pp. 10-11, 18-20 (See proposed revision to 40 CFR §120.2(c)(2) and 33 CFR §328.3(c)(2)).Id. at pp. 7-8 (See proposed revision to 40 CFR §120.2(a)(4) and 33 CFR §328.3(a)(4)).Id. at pp. 10-11, 18-20 (See proposed revision to 40 CFR §§120.2(a)(3), (a)(4), and (a)(5) and 33 CFR §§328.3(a)(3), (a)(4), and (a)(5)).Id.Sackett v. Environmental Protection Agency, 143 S. Ct. at 1341. EPA Pre-Publication Notice, pp. 3-4.