On August 30, 2023, the United States Corps of Engineers (Corps) and Environmental Protection Agency (EPA) released a prepublication version of their final rulemaking amending their previous definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA)—a change referred to as the Good Cause Rule. This new WOTUS rule significantly narrows the sphere of federal jurisdiction.
The new rulemaking was issued under the “good cause” exception from the notice and comment process, largely in response to the US Supreme Court’s decision in the case of Sackett v. EPA, issued in May of the same year.
The redefinition of WOTUS signifies a significant shift in the extent of coverage afforded by the Clean Water Act, affecting the measures that corporations and law firms must consider in compliance calculations. This change is fundamental for legal practitioners in both environmental law and companies involving water-based activities or trading in water-related assets.
Further implications of the rule change are currently being analyzed by legal scholars and practitioners and will certainly be the subject of much discussion within the legal community over the months to come.
For further in-depth reporting and legal analysis on this, see the full article on JD Supra by Holland & Hart LLP.