ive reporting required in existing regulations.VII. Miscellaneous Changesa. Dispute ResolutionsIn the Section 404 permitting process, disputes often arise between Tribes, States, permittees, other affected parties, and the EPA. The proposed regulations allow EPA to “facilitate resolution of disputes between Federal agencies, Tribes, and States seeking to assume and/or administer a CWA section 404 program.”b. Conflict of InterestEPA proposes that any “public officer, employee, or individual” with responsibilities related to a Section 404 permitting program who “has a direct personal or pecuniary interest in any matter that is subject to decision by the agency” disclose that interest in official records and be prohibited from participating in any related decision-making.c. Partial AssumptionDespite requests to do so, EPA has declined to revise 40 C.F.R. § 233.1(b), which clarifies that partial coverage programs are not approvable under Section 404. 88 Fed. Reg. 55,278 (August 14, 2023). 33 U.S.C. § 1344 - Permits for dredged or fill material. 33 U.S.C. § 1344(f). 33 U.S.C. § 1344(a). 33 U.S.C. § 1344(g)-(i). 88 Fed. Reg. 55,278. The Corps’s criteria are outlined at 40 C.F.R. § 20. 33 U.S.C. § 1344(g). 88 Fed. Reg. 55,283. 88 Fed. Reg. 55,283. These regulations are currently outlined at 40 C.F.R. Subparts C – E. 88 Fed. Reg. 55,283. 40 C.F.R. § 233.11(a). 88 Fed. Reg. 55,283. 88 Fed. Reg. 55,283. 88 Fed. Reg. 55,284. 88 Fed. Reg. 55,284-85. 88 Fed. Reg. 55,285. EPA notes that “the agencies currently interpret the term “adjacent” consistent with the Supreme Court’s decision in Sackett v. EPA, No. 21-454 (U.S. May 25, 2023).” 88 Fed. Reg. 55,285 at FN24. 88 Fed. Reg. 55,285. 88 Fed. Reg. 55,292. 88 Fed. Reg. 55,294. 33 U.S.C. § 1344(b)(1). 33 U.S.C. § 1344(h)(1)(A)(i). 88 Fed. Reg. 55,296. 88 Fed. Reg. 55,297-98. 88 Fed. Reg. 55,298. 88 Fed. Reg. 55,298. 88 Fed. Reg. 55,298. 33 U.S.C. § 1344(h)(1)(A)(ii). 33 U.S.C. § 1344(b)(1). 88 Fed. Reg. 55,301. 88 Fed. Reg. 55,301. 88 Fed. Reg. 55,

“CWA”) case of Sackett v. EPA, No. 21-454 (May 25, 2023). This decision delivers a significant change in terms of the reach and jurisdiction of the CWA, and supplies some harsh critiques between the Justices that all agreed in the judgement but were fiercely divided on how to get there.The question presented to the Court was, seemingly, straightforward: “Whether the Ninth Circuit set forth the proper test for determining whether wetlands are 'waters of the United States' under the Clean Water Act, 33 U.S.C. § 1362(7).” But, this question has wide-reaching implications. The definition of “waters of the United States” (“WOTUS”) sets the jurisdictional limits of the CWA. Under the CWA, the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Army Corps”) have the power to regulate, among other things, the discharge of pollutants to navigable water from a point source (33 U.S.C. § 1362(12)) and the discharge of dredged or fill material into navigable waters (33 U.S.C. § 1344). “Navigable waters” are defined in the CWA as “the waters of the United States, including the territorial seas.” 33 U.S.C. §1362(7). “Waters of the United States” is not defined further under the Act, so the agencies have been left to try to craft a definition.The Army Corps and EPA first proposed a WOTUS definition in 1977 and it has faced revisions and legal challenges ever since. The most controversial aspect of the WOTUS definition throughout its history has been the inclusion of wetlands and other non-navigable waters. The WOTUS definition has faced Supreme Court review in three previous cases:U.S. v. Riverside Bayview, 474 U.S. 121 (1985)Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001)Rapanos v. U.S., 547 U.S. 715 (2006)Which brings us to the Sackett case. Justice Alito authored the majority opinion for the Court, joined by Chief Justice Roberts, and Justices Gorsuch and Barrett. All of the other Justices also concurred in the judg

ated as a water only to the extent that it blends into and thus becomes indistinguishable from an abutting water.” Second, the water must be “for all practical purposes, a navigable in fact water.” He claimed that the test was consistent with the text and purpose of the statute and easy to administer.Brian Fletcher, counsel for the respondents, emphasized in his opening statement that the “question presented in this case is whether wetlands lose protection if they're separated from other waters by a barrier like a berm or a road,” but that “essentially undisputed scientific evidence shows that those sorts of barriers do not diminish wetlands' essential role in protecting the integrity of other waters.”As usual for Supreme Court oral arguments, however, both parties’ opening statements were soon interrupted by questions from the Justices, which sought to clarify the parties’ views and the legal issues at stake.“Wetlands Adjacent” in the Amended Clean Water ActSeveral Justices discussed 33 USC § 1344(g)(1) (§ 404(g)(1) of the Clean Water Act) and questioned how it may inform the definition of “waters of the United States.” Section 404(g)(1) refers to “wetlands adjacent” to “all waters which are subject to the ebb and flow of the tide shoreward to their mean high water mark, or mean higher high water mark on the west coast” as a subset of “navigable waters.” The provision was part of the 1977 amendments to the Clean Water Act, and its terminology of adjacency in relation to wetlands resembles the language of the Army Corps of Engineers’ earlier regulations defining WOTUS. Both sides’ briefs in Sackett discussed § 404(g)(1), with the agencies emphasizing and the Sacketts downplaying its importance.Justice Kagan was the first to mention the provision, which Schiff acknowledged implied that wetlands adjacent to navigable waters are WOTUS, but he asserted that “adjacency in the context of 404(g) clearly means physically touching.” Kagan pointed to dictionary definitions of “adjacent” as evid

, (Apr. 7, 2017),2See Inside EPA, Army Corps Halting CWA Permit Coverage Following Pipeline Ruling (Apr. 22, 2020),.3See 33 U.S.C. § 1344(a).4 Also known as “jurisdictional” or “navigable” waters. While outside the scope of this piece, the definition of waters of the United States is a hotly contested issue.

K&L Gates has a team of lawyers and policy professionals in Washington, D.C. and beyond that is positioned to assist with such efforts.Notes: [1] Memorandum from E. Scott Pruitt, EPA Administrator, to General Counsel, Assistant Administrator, Office of Water, and Regional Administrators, RE: Updating the EPA’s Regulations Implementing Clean Water Act Section 404(c) (June 26, 2018) (“Memo”), https://www.epa.gov/sites/production/files/2018-06/documents/memo_cwa_section_404c_regs_06-26-2018_0.pdf. [2] 33 U.S.C. § 1344(c). [3] Id. § 1344(a).

But the CWA also has a powerful regulatory authority in its Section 404, controlling the discharge or dredge and fill material into waters of the United States. 33 U.S.C. § 1344. Regulatory authority under Section 404 is exercised by both the U.S. Army Corps of Engineers (USACE) and EPA.

t of “adjacent wetlands,” since that term has now been defined in Sackett (e.g., a “neighboring” wetland located thousands of feet away from and that never exhibits a continuous surface flow into a stream, river, or lake). However, any activity approaching a conceivable “continuous surface connection” in some form is not free of risk — including, for example, projects that impact a wetland that “continuously” flows into a stream in the rainy season but exhibits a “temporary interruption” in a “dry spell.” Until the Agencies issue additional guidance, agency determinations, project plans and schedules, and investment decisions will likely need to take this uncertainty into account.Latham & Watkins will continue to monitor developments related to the Agencies’ implementation of Sackett and any forthcoming WOTUS rulemaking.This post was prepared with the assistance of Layla Rao in the Washington, D.C. office of Latham & Watkins.Endnotes 143 S. Ct. 1322 (2023); 33 U.S.C. §§ 1362(7), 1342, 1344. An approved jurisdictional determination is “a Corps document stating the presence or absence of waters of the United States on a parcel or a written statement and map identifying the limits of waters of the United States on a parcel.” 33 C.F.R. § 331.2.See https://www.usace.army.mil/Media/Announcements/Article/3409141/26-may-2023-supreme-court-ruling-in-sackett-v-environmental-protection-agency/; see also https://www.lrc.usace.army.mil/Missions/Regulatory/Jurisdictional-Determinations/ (“As this decision will have implications on the determination of waters covered under the CWA, the issuance of all Approved Jurisdictional Determinations is on hold until further notice. Additional information will be provided as it becomes available.”); https://www.epa.gov/wotus/about-waters-united-states (“The agencies continue to review the decision to determine next steps.”).Seehttps://www.epa.gov/sites/default/files/2016-02/documents/cwa_jurisdiction_following_rapanos120208.pdf (2008 guidance fo

wever, the Court did not produce effective guidance to assist regulators in implementing the underlying goals of the CWA. Instead, the decision is likely to continue the ongoing debate between the executive branch and the Court over the reach of the wetlands regulatory provisions of the Act. Furthermore, by limiting the reach of the CWA, the Court’s majority opinion will further impact federal environmental review and related litigation that could have significant implications for those planning to execute — or challenge — a myriad of different development projects ranging from mining to pipelines to real estate developments.BackgroundOriginally enacted in 1972 and amended in 1977, the CWA authorizes the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Army Corps) to regulate the deposit of dredged or fill materials into “navigable waters,” defined as “waters of the United States” and including wetlands that are “adjacent” to such waters. See 33 U.S.C. §§1311(a), 1344(a), 1344(g), 1362(7).In 2007, Michael and Chantell Sackett purchased two-thirds of an acre of property near Priest Lake, Idaho, where they filled in wetlands with dirt without seeking any permits to prepare to build a home. On one side, the Sacketts’ land is across a road from an unnamed tributary that feeds into navigable, intrastate Priest Lake. The EPA determined that the wetlands on the Sacketts’ property are adjacent to waters of the United States and, in late 2007, sent the Sacketts a compliance order ordering them to remove the material and informing them of possible fines under the CWA if they did not. The Sacketts, represented by the Pacific Legal Foundation, a property rights advocacy organization, brought an action in the federal district court in Idaho for declaratory and injunctive relief that the wetlands on their property were not “waters of the United States” under the CWA. After an odyssey resulting in a Supreme Court decision affirming their right to bring the action (S

In reviewing and issuing a permit, USACE will review a proposed project and alternatives to the proposal, determining whether a permittee has taken steps to avoid wetland impacts, minimized potential wetland impacts, and provided compensation for unavoidable impacts. While USACE administers the day-to-day Section 404 program, EPA develops and interprets the policy and criteria employed by USACE in its evaluation of permit applications and retains the authority to prohibit, deny, or restrict the use of any defined area as a disposal site. 33 U.S.C. § 1344(b) & (c). EPA’s authority to prohibit or deny a permit, overriding USACE’s permitting authority, arises under Section 404(c) of the CWA and is generally referred to as EPA’s “veto authority.” EPA may initiate the 404(c) veto process if it determines that the impact of a permit presents “unacceptable adverse effects.”

The Environmental Protection Agency and the Army Corps of Engineers recently announced a revised and final rule amending the definition of Waters of the United States (WOTUS) following the Supreme Court decision in Sackett v. EPA that invalidated the agencies’ previous definition. The revised rule took effect immediately upon its publication in the Federal Register on September 8.The definition of “waters of the United States” is significant because it sets the jurisdictional limits of the Clean Water Act (CWA). Under the CWA, EPA and the Army Corps have the power to regulate, among other things, the discharge of pollutants to navigable water from a point source (33 U.S.C. § 1362(12)) and the discharge of dredged or fill material into navigable waters (33 U.S.C. § 1344). “Navigable waters” are defined in the CWA as “the waters of the United States, including the territorial seas.” 33 U.S.C. §1362(7). “Waters of the United States” is not defined further under the CWA, so the agencies have been left to try to craft a definition.Since the Supreme Court’s 2006 decision in Rapanos v. United States, the agencies have relied on a “significant nexus” standard to include nearby wetlands and ephemeral waterways in the WOTUS definition. A “significant nexus” was established if the body of water “either alone or in combination with similarly situated wetlands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable.”In January of this year, the agencies published a “Revised Definition of ‘Waters of the United States’”, which incorporated both a “relatively permanent” standard and a “significant nexus” standard. However, in May 2023, the Supreme Court decision in Sackett v.