Dirt in the Ditches: A Practical Look at How the Sackett Decision Affects WOTUS Permitting Nationwide

In January 2023, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (Agencies) adopted a final rule altering the definition of "waters of the United States" (WOTUS), a key term that is referred to but not defined in the Clean Water Act (CWA) and is crucial for determining CWA permitting jurisdiction. The Agencies' stated purpose in adopting the rule was to better comply with the CWA by repealing and replacing a definition of WOTUS that had previously been adopted during the Trump administration; however, promulgation of the rule prompted multiple lawsuits that once again split the nation into two separate CWA permitting frameworks.

In May 2023, the long-anticipated U.S. Supreme Court decision, Sackett v. EPA, added to the confusion by narrowing the types of features that could be considered WOTUS in a manner that had not been anticipated by the January rule or the Trump administration's rule preceding it. The Agencies subsequently promulgated, without providing for public review or comment, an updated WOTUS rule in September intended to conform with the ruling in Sackett. But significant confusion and risk of litigation over WOTUS remain.

On March 26, 2024, Rebecca Hays Barho, Mary Lynn Coffee and Sara Johnson explored the practical ramifications of the Sackett decision. They provided a brief overview of the history of and controversy surrounding the definition of WOTUS and discussed how the Court’s narrowing of the WOTUS definition has and will continue affecting permitting under the CWA. Panelists also included Harris Frampton and Bonnie Rogers from SWCA Environmental Consultants.