Missing Nexus: Post Sackett Decision, EPA and Army Redefine “Waters of the United States”

October 2023

The U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) issued a final rule amending the Clean Water Act’s (CWA) definition of “Waters of the United States” (WOTUS) on August 29, 2023. The amended rule removes the “significant nexus” test the agencies previously used to determine whether a water body was subject to CWA regulation. Under the significant nexus test, the EPA and Corps exercised jurisdiction if a “waterbody (alone or in combination) significantly affects the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters.” Under the amended rule, only wetlands “adjacent to navigable waters” fall under the CWA.

Background

On December 30, 2022, the EPA and Corps announced a final rule revising the WOTUS definition. The agencies’ revision incorporated the “significant nexus” test articulated initially by Supreme Court Justice Anthony Kennedy in Rapanos v. United States, 547 U.S. 715 (2006). The agencies published the final rule on January 18, 2023, and it took effect on March 20, 2023. Shortly after, on May 25, 2023, the Supreme Court issued a decision in the case of Sackett v. EPA, 598 U.S. __ (2023), which discarded the significant nexus test. The Sackett decision held the CWA requires a contiguous surface connection to navigable waters and thus does not regulate isolated wetlands not adjacent to traditional WOTUS.

The New(est) Rule

While the EPA and Corps’ 2023 rule was not directly before the Supreme Court, Sackett clarified that certain aspects of the previous rule were invalid. To conform to the Supreme Court’s decision, the EPA and Corps amended the final rule to remove the significant nexus test from consideration when identifying federally protected tributaries and other waters. To provide updates on the definition, the agencies hosted three identical public webinars on September 12th, 13th, and 20th, 2023, and posted a recording to the EPA’s website. The agencies also plan on holding follow-up listening sessions this fall with stakeholders to identify other issues that may arise in light of the Sackett decision.

Rule Summary:

Here are some key takeaways from the agencies’ new WOTUS definition, post-Sackett:

The CWA does not regulate isolated wetlands not adjacent to navigable waters.
The agencies removed the “significant nexus test” from their CWA definition.
The CWA only regulates wetlands with a contiguous surface connection to navigable waters.

More Information

The CWA contains significant criminal and civil penalties for noncompliance.

For the Hartman King PC article on the previous final rule (March 2023), click here.
For the Hartman King PC article on the Sackett decision (May 2023), click here.

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