EPA Issues Emergency New Rule on Waters of the United States

Using a rarely invoked exception to the Administrative Procedure Act’s requirement for public notice and comment prior to issuing a new rule, the EPA set forth a new rule governing jurisdiction under the Clean Water Act (CWA). Believing that this new rule was urgently needed in light of the recent U.S. Supreme Court eviscerating the existing rule in the Sackett case, the EPA issued a new rule defining how waters and wetlands are to be considered “Waters of the United States”, and thus subject to Federal regulation under the Clean Water Act.

The new rule revises the prior definition by removing the “significant nexus” standard that was the basis of the earlier rule. Instead of being closely connected, water bodies and wetlands must now have a continuous surface connection to navigable waterways, as required by the Sackett ruling.

The significant nexus test allowed streams and wetlands adjacent to larger water bodies to be protected under the CWA. Those previous protections for intra-State water bodies and wetlands are gone, and those waters are now exempt from any protection under the CWA.

Sackett v. EPA effectively eliminated the federal government’s role in regulating many wetlands nationwide, leaving wetlands that aren’t directly connected to large rivers, streams, and coastlines either unregulated or regulated by States.