Waters of the United States Post-Sackett: Current Regulations, Pending Litigation, and the Path Ahead

The Clean Water Act protects "navigable waters," which the Act defines as WOTUS. The Act prohibits discharges of pollutants, including fill material, to WOTUS without first obtaining a permit from either the U.S. Environmental Protection Agency (EPA) or Army Corps of Engineers (Corps).

Over the past half-century, EPA, the Corps, and the courts have offered a wide range of interpretations concerning the types of water bodies that qualify as "WOTUS" and are therefore subject to federal regulation under the Clean Water Act. In recent years under different administrations, rulemaking has vacillated between creating narrower WOTUS definitions to more expansive definitions having a whiplash effect on counsel and their clients.

In 2020, EPA and the Corps (under the prior administration) finalized the Navigable Waters Protection Rule (NWPR), which established a significantly narrower definition of WOTUS than under prior agency rules and guidance. In 2023, the agencies, under the purview of a new administration, issued a more expansive rule that took effect on March 20, 2023. However, on May 25, 2023, the U.S. Supreme Court in Sackett v. EPA discarded the "significant nexus" test when determining jurisdiction under the CWA and established a new standard. As a result, the agencies revised the rule once more, issuing a final rule that comports with Sackett on Aug. 29, 2023, without going through the notice and comment rulemaking process.

As a result, litigation continues to swirl through federal courts across the nation challenging the revised rule and the procedure by which it was revised.

Listen as our expert panel examines the status of the NWPR and notable current litigation. The panel will also offer best practices for compliance given the ever-evolving regulatory and enforcement landscape.