On September 8, 2023, the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps) published a final rule amending the significant definition of “waters of the United States” pursuant to the Clean Water Act. This rule, collectively referred to as the "Agency Rule," revises the Agencies’ definition which had been issued in January of the same year. The laid out adjustments influence both private landowners and businesses, dictating how water bodies will be regulated and protected under the Act.
The new rule bears weighty implications for several entities including property developers, private landowners and municipalities. The former definition of “waters of the United States” presented layered complexities and ambiguities, leading to years of litigation. The Agency Rule presents an attempt to squelch these uncertainties, intending to provide clearer guidance and prevent misunderstandings and excessive litigation.
Notably, the new rule aligns with the Supreme Court’s interpretation in the 2012 case, Sackett v. EPA, regarding the EPA’s enforcement practices under the Clean Water Act. However, it ought to be recognized that despite efforts to provide explicitness, several ambiguities concerning the interpretation and application of the Act still persist. Understandably, this may leave businesses, municipalities, and individuals still uncertain about the Act’s impact and the degree of regulatory protection or limitation related to water bodies under their jurisdiction.
This area of environmental regulation is anticipated to receive continued scrutiny and probably additional litigation. Both private and public entities will have to keenly observe the development and adapt accordingly to assure compliance. For a comprehensive understanding of this significant rule change, please consult the in-depth analysis provided on JD Supra.