Clean Water Act Jurisdiction Still Murky After a Choppy 2023

Mary Lynn Coffee and Rebecca Barho authored the article “Clean Water Act Jurisdiction Still Murky After a Choppy 2023” for Law360.  The article parses through the most important Clean Water Act  jurisdictional developments of 2023 — and ventures a few predictions as to what 2024 may have in store.

The article begins: “In January [of 2023], the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers adopted a final rule altering the definition of ‘waters of the United States,’ a key term that is referred to but not defined in the Clean Water Act and is crucial for determining CWA permitting jurisdiction.

The agencies’ stated purpose in adopting the January 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.

Regulatory definitions of ‘waters of the U.S.’ have been the subject of myriad legal battles, including a recent decision by the U.S. Supreme Court… However, publication of the January 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 published a new ‘waters of the U.S.’ rule in September, intended to conform with the ruling in Sackett. But significant complications and risk of litigation remain.