WOTUS Update: Waters of the US Rule Published in the Federal Register effective September 8, 2023

---

Parts of the January 2023 WOTUS rule were invalid under the Supreme Court’s interpretation of the Clean Water Act in the Sackett decision. Therefore, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (“the agencies”) have amended key aspects of the regulatory text. The new WOTUS rule was published in the Federal Register and became effective on September 8, 2023, to conform to the U.S. Supreme Court’s May 25, 2023, decision in the case of Sackett v. Environmental Protection Agency. Some of the most significant changes include:

1. “Significant nexus” is no longer considered. Previously, a waterbody was considered a jurisdictional Water of the U.S. if it had a significant nexus to a downstream Traditionally Navigable Water.
2. Waterbodies are now considered jurisdictional Waters of the U.S. if they are a relatively permanent water with a continuous, indistinguishable surface water connection to downstream Traditionally Navigable Water. In this case, indistinguishable means a connection that is difficult to determine where the waterbody ends, and the wetland begins.

What It All Means

Wetlands and other surface waters are considered jurisdictional Waters of the U.S. if they have an indistinguishable, continuous surface water connection to a downstream Traditionally Navigable Water. Previously wetlands that were “bordering, contiguous, or neighboring” were considered jurisdictional Waters of the U.S. Jurisdictional Waters of the U.S. require permits and mitigation from the U.S. Army Corps of Engineers, if proposed to be impacted.

Relatively Permanent Definition

The agencies do not define what a “relatively permanent” waterbody is, which is certain to develop into a point of contention down the road.

Impact on Ephemeral Streams

With these changes, ephemeral streams may not be considered jurisdictional Waters of the U.S. because they are not a “relatively permanent” feature. Additionally, a law passed in the State of Ohio (House Bill 175) on July 21, 2022, removed regulations from ephemeral streams in Ohio. Therefore, ephemeral streams in Ohio are no longer regulated at the federal (USACE) or state (OEPA) level and impacts to ephemeral streams would not require a permit or mitigation. Impacts to wetlands, intermittent and perennial streams, lakes, and certain ponds still require a permit either at the federal or state level.

EDG Can Help You Navigate the New WOTUS Rule

Whatever your project scale or budget, at EDG, we anticipate your ecological and environmental needs to provide tailored solutions. Learn more about our Ecological Services and team of ecologists, scientists, and engineers.