NOTES[1] Presidential Executive Order No. 13778: Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule (Feb. 28, 2017).[2] 33 U.S.C. § 1251(a).[3] Id. at §§ 1251(a)(1), 1311(a)(1), 1342, and 1344.

In the CWA, Congress declared its objective “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To further this objective, the CWA makes it “unlawful” to discharge any pollutant into “navigable waters” without a permit, 33 U.S.C. §§ 1311(a), 1342(a).

In the CWA, Congress declared its objective “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To further this objective, the CWA makes it “unlawful” to discharge any pollutant into “navigable waters” without a permit, 33 U.S.C. §§ 1311(a), 1342(a).

Until then, businesses can save time and money by better understanding the regulatory landscape.1Jeffrey M. Gaba, Federal Supervision of State Water Quality Standards under the Clean Water Act, 36 VAND. L. REV. 1167, 1176 (1983); see also 33 U.S.C. § 1251(b) (“It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources . . . .”).2 33 U.S.C. § 407 (The Rivers and Harbors Act was also known as the Refuse Act); Bonnie A Malloy, Testing Cooperative Federalism: Water Quality Standards under the Clean Water Act, 6 ENVTL. & ENERGY L. & POL’Y J. 63, 69 (2011) (citations omitted).3 D.C. v. Schramm, 631 F.2d 854, 860 (D.C. Cir. 1980).4 33 U.S.C. § 1362(7) (2018).5 80 Fed. Reg. 37,054 (June 29, 2015), codified at 40 C.F.R. § 230.3(o) (2018).

each of the Clean Water Act. These Trump-era reforms were heavily litigated across the country, and eventually the Trump-era rule, known as the “Navigable Waters Protection Rule,” was vacated by the federal district court in Arizona. Although the vacated regulatory text remained on the pages of the Code of Federal Regulations, EPA and the Corps began following the 1986 WOTUS rules as modified by subsequent Supreme Court caselaw and guidance while undertaking this rulemaking.Although the EPA and the Corps have been implementing the 1986 WOTUS regulations for months now, this particular rulemaking is still significant for a few reasons. Where the Navigable Waters Protection Rule limited the reach of the Clean Water Act on the basis of statutory language and the U.S. v. Rapanos plurality opinion, the Biden Administration’s rulemaking relies heavily on the Clean Water Act’s statutory purpose “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. §1251(a). Instead of treating subsequent language in the Clean Water Act as a limitation on that purpose, this Administration sees that subsequent language— including language describing environmental protections in the Act as “the primary responsibilities and rights of the States,” §1251(b)—as ways to accomplish that overriding statutory purpose. The Administration’s focus on climate change and environmental justice is also evident in the rulemaking. The Administration sees mitigation of the effects of climate change and the protection of underserved communities as justifications for expanding the reach of the Clean Water Act through a revised definition of WOTUS.Notably, EPA and the Corps do not appear to view the Supreme Court’s pending decision in Sackett v. EPA, or “Sackett II,” as posing significant risks to the agencies’ decision to rely on the significant nexus standard in establishing whether water features qualify as WOTUS. Sackett II involves EPA’s enforcement action against landown

BackgroundThe federal Clean Water Act, 33 U.S.C., §§1251, et seq., prohibits the discharge of any “pollutant” (including not only traditional contaminants but also dredge spoils, rock, and sand) into “waters of the United States” without a permit.Almost since it was enacted in 1972, the scope of federal jurisdiction under the Act has been confusing and controversial, primarily because of the vague statutory language.

Legal Background Discharges regulated under the Clean Water Act are typically not also subject to regulation under RCRA. RCRA’s anti-duplication provision states in pertinent part: Nothing in this chapter shall be construed to apply to (or to authorize any State, interstate, or local authority to regulate) any activity or substance which is subject to the Federal Water Pollution Control Act [33 U.S.C. 1251 et seq.], . . . except to the extent that such application (or regulation) is not inconsistent with the requirements of such Acts. 42 USC § 6905(a).

It has already generated considerable criticism in Congress and the regulated community, while it has received broad praise from environmentalists. Affected stakeholders will need to develop and submit strong comments to hopefully lead to a final rule that lessens the impact on the regulated community.Notes1 Federal Water Pollution Control Act ("Clean Water Act"), 33 U.S.C. §1251(a).2 See Rapanos v. United States, 547 U.S. 715 (2006); see also EPA/Corps Rapanos Guidance (2008). Available here.3 EPA News Release - Water (3/25/14) (quoting EPA Administrator McCarthy and Assistant Army Secretary Darcy).

onmental Protection Agency (EPA) on Aug. 29, 2023, issued a final rulemaking that revises the definition of "Waters of the United States" (WOTUS) within Corps and EPA regulations, pursuant to the Clean Water Act (WOTUS Rule).Though it significantly narrows the geographic reach of the Clean Water Act, with some exceptions, the WOTUS Rule does not reflect the full scope of the U.S. Supreme Court's May 25, 2023, ruling in Sackett v. Environmental Protection Agency – in part by failing to provide clarity over certain key terms such as "relatively permanent" in reference to certain bodies of water.This Holland & Knight alert examines the evolution of the WOTUS Rule and uncertainty with how it could be applied going forward.The U.S. Army Corps of Engineers (Corps) and U.S. Environmental Protection Agency (EPA) on Aug. 29, 2023, issued a final rulemaking revising the definition of "Waters of the United States" (WOTUS) within Corps1 and EPA2 regulations, pursuant to the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq (WOTUS Rule). The WOTUS Rule amends the Biden Administration's January 2023 "Revised Definition of 'Waters of the United States'" (Biden Rule) and was issued in order to conform the definition of "WOTUS" to the May 25, 2023, opinion of the U.S. Supreme Court in Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023).As explained in Holland & Knight's previous alert, "Sackett Decision Provides Clarity, Substantially Restricts Clean Water Act Jurisdiction Scope," May 26, 2023, the Sackett court rejected the Biden Rule's broad expansion of the CWA's geographical regulatory reach under the "significant nexus" test. That rule was issued to replace the Trump Administration's 2020 Navigable Waters Protection Rule (NWPR). (For a history of the Biden Rule, see Holland & Knight's previous alert, "Waters of the U.S. Rule Will Significantly Expand Federal Authority," Jan. 19, 2023.)The new WOTUS Rule significantly narrows the geographic reach of the CWA, excluding, for example, wet

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).