A new rule defining “Waters of the U.S.” will go into effect on March 20, 2023. The rule will essentially codify what is already current policy of the Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA).
Following the Supreme Court decisions on Carabell v. United States in 2004 and Rapanos v. United States in 2006, the Corps and EPA issued regulatory guidance which defined Waters of the U.S. using the “significant nexus” test referenced in Justice Kennedy’s opinion. This test considers certain wetlands (including many of California’s vernal pools) to be Waters of the U.S. if they have a “significant nexus” to other Waters of the U.S. The Rapanos guidance has been in effect on and off since 2008, except for time periods when the Obama-era 2015 Clean Water Rule and the Trump-era 2020 Navigable Waters Protection Rule were briefly in effect. However, this guidance was never formally codified – until now.
For the most part, the new “Biden Rule” (also referred to as the “2023 WOTUS Rule”) maintains the status quo of how Waters of the U.S. have been defined since 2008. However, a pending Supreme Court case – Sackett v. U.S. Environmental Protection Agency (2023) – may upend the new rule. The decision on the Sackett case, expected in June, could considerably limit Corps/EPA jurisdiction over certain wetlands. However, in California, wetlands are separately protected through state law, and many are also protected through the federal Endangered Species Act.
ECORP’s regulatory team is closely tracking implementation of the new Waters of the U.S. definition, as well as the Sackett case. Please contact Lourdes Gonzalez-Peralta at (916) 782-9100 or Scott Taylor at (909) 307-0046 for information on ECORP’s regulatory services.
