The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers on Wednesday published a final rule defining “Waters of the United States,” or WOTUS, which determines the extent of federal regulatory authority under the Clean Water Act. 88 Fed. Reg. 3004-3144 (Jan. 18, 2023). The new rule largely reinstates the longstanding definition of WOTUS first adopted in 1986, as modified by the Supreme Court’s opinion in Rapanos v. United States,547 U.S. 715 (2006). But the final rule comes as the Supreme Court again considers the proper scope of WOTUS in Sackett v. Environmental Protection Agency, which will likely determine the viability of the new definition.
Keith Garner is a partner and Practice Group Leader of the Real Estate, Energy, Land Use & Environmental Practice Group in the firm's San Francisco office.