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Waters of the United States Rule (WOTUS) Update

Waters of the United States Rule (WOTUS) Update

By:  Katherine R. English, Esq.

On January 18, 2023, the Army Corps of Engineers and the United States Environmental Protection Agency published their final rule defining the scope of waters protected under the Clean Water Act in the Federal Register at 88 FR 3004.  The rule will be effective on March 30, 2023.  The waters protected by the Clean Water Act are also called “Waters of the United States” or WOTUS.   This rule replaces the most recent rule definition for WOTUS, called the Navigable Waters Protection Rule, that has been vacated by federal district courts.

On January 18, 2023, a lawsuit was filed in the Southern District of Texas, Galveston Division, challenging the final WOTUS rule.  Plaintiffs include the American Farm Bureau Federation, American Petroleum Federation, American Petroleum Institute, American Road and Transportation Builders Association, Associated General Contractors of America, Leading Builders of America, Matagorda County Farm Bureau, National Association of Realtors, National Cattlemen’s Beef Association, National Corn Growers Association, National Mining Association, National Multifamily Housing Council, National Pork Producers Council, National Stone, Sand and Gravel Association, Public Lands Council, Texas Farm Bureau, and United States Poultry and Egg Association.  In the complaint, Plaintiffs’ state that the new rule is unworkable:

“Instead of providing much-needed clarity to the regulated community, however, all the Rule makes clear is that the Agencies are determined to exert CWA jurisdiction over a staggering range of dry land and water features—whether large or small; permanent, intermittent, or ephemeral; flowing or stagnant; natural or manmade; interstate or intrastate; and no matter how remote from or lacking in a physical connection to actual navigable waters. Under the Rule, Plaintiffs’ members will constantly be at risk that any sometimes-wet feature on their property will be deemed WOTUS by the Agencies using vague and unpredictable standards—making normal business activities in that area subject to criminal and civil penalties.”

Note, too, that the United States Supreme Court is currently considering a case heard on October 3, 2022, Sackett v. United States Environmental Protection Agency, that may also impact the interpretation the new WOTUS definition. On January 30, 2023, 25 governors, including Florida’s, sent a letter to President Biden requesting the WOTUS rule be delayed until the Supreme Court rules on the Sackett case.  

Click link to read the referenced case: https://www.fb.org/files/3-2023-cv-00020_(0001)_COMPLAINT_against_Lieutenant_General_Scott_A._Spellmon_Michael_L._Connor_Michael_S._Regan_U.S._En.pdf