By: Andrew Der, CEP
The Environmental Protection Agency (EPA) and US Army Corps of Engineers (USACE) published a memorandum on March 12th to clarify the extent of jurisdictional waters of the United States (WOTUS), including wetlands, under Clean Water Act (CWA) Section 404 permitting. The memo announces the intention of further revising the rules in congruence with the Supreme Court’s May 2023 ruling in Sackett v. Environmental Protection Agency. For more information about the case, check out my previous blog.
To break it down, the memo affirms that WOTUS only encompasses “relatively permanent, standing or continuously flowing bodies of water forming streams, oceans, rivers, and lakes”, and that wetlands must have a “continuous surface connection” regarding adjacent and otherwise unconnected waters – resulting in a potentially narrower interpretation than before. The EPA will host listening sessions with stakeholders regarding the revised definition, addressing topics including the scope of ‘relatively permanent’ waters and ‘continuous surface connection’, temporary interruptions in surface connection, and the extent of jurisdictional ditches. More information is available here.
It’s important to note that incomplete projects may need to have WOTUS limits re-evaluated. We must also remember that this does not affect state waters regulation, which in Maryland frequently exceeds that of the USACE – as discussed in this blog.