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Revised Definition of “Waters of the United States”; Conforming

On September 8, 2023, the United States Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA) published a final 2023 Conforming Rule amending the January 2023 “Revised Definition of ‘Waters of the United States’” rule to conform the definition to a 2023 Supreme Court decision in Sackett v. EPA. Parts of the January 2023 Rule are invalid under the Supreme Court’s interpretation of the Clean Water Act (CWA) in the Sackett decision.

The CWA prohibits the discharge of pollutants from a point source into “navigable waters” unless otherwise authorized under the Act. “Navigable waters” are defined as “the waters of the United States, including the territorial seas.” The agencies’ 2023 Conforming Rule amendments remove the significant nexus test from consideration when identifying tributaries and other waters as Waters of the United States, or WOTUS. It also revises the adjacency test when identifying federally jurisdictional wetlands, clarifies that interstate wetlands do not fall within the interstate waters category, and clarifies the types of features that can be considered under the “additional waters” category.

For more information, please click here: EPA: Current Implementation of Waters of the United States

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