Closing out our Earth Week series this year, we provide an update on recent Clean Water Act regulatory developments and discuss their impact on renewable energy development.
The Clean Water Act establishes federal jurisdiction over “navigable waters,” defined in the Act as “waters of the United States” (“WOTUS”). The term WOTUS is not defined in the Clean Water Act and has been left to the agencies that administer the Act to define through regulation. Because the Clean Water Act can impose potentially costly regulatory requirements and protracted permitting obligations, the scope of the Clean Water Act’s jurisdiction has become an increasingly political issue over the years. As a result, the definition of WOTUS has been the subject of several Supreme Court decisions and rulemakings that have expanded and contracted the scope of the Clean Water Act’s jurisdiction with each change in the political tides.
The Supreme Court most recently weighed in on the definition of WOTUS in May 2023, when it issued its decision in Sackett v. EPA. The case centered around whether a specific isolated wetland was a jurisdictional WOTUS. The Court eliminated the “significant nexus” test that had previously been used to assert Clean Water Act jurisdiction over otherwise isolated wetlands and intermittent or ephemeral waterbodies. The Court held that to assert jurisdiction over an adjacent wetland under the CWA, a party must establish that:
- The adjacent waterbody constitutes a WOTUS (i.e., a relatively permanent body of water connected to traditional interstate navigable waters), and
- The wetland has a continuous surface connection with that WOTUS, making it difficult to determine where the water ends and the wetland begins.
Leading up to Sackett, EPA and USACE had issued a rulemaking in January 2023 that had defined WOTUS in a way that was not consistent with the Court’s decision. As a result, EPA and USACE issued a rule on September 8, 2023 to revise the definition of WOTUS to conform to the definition in Sackett. The rule removed the significant nexus test for identifying tributaries and adjacent wetlands as WOTUS from the Clean Water Act regulations and revised the adjacency test for identifying jurisdictional WOTUS to require a continuous surface connection between a wetland and an adjacent WOTUS. The January 2023 rule was challenged in courts across the country, with varying outcomes. The January 2023 rule, as amended by the September 2023 rule, is being implemented in 24 states, D.C., and the U.S. Territories. The January 2023 rule has been enjoined in 24 states. In those states, EPA and USACE are interpreting WOTUS consistent with the pre-2015 regulatory regime and Sackett.
With the new administration in the White House comes a new approach on defining WOTUS and the scope of Clean Water Act jurisdiction. On March 12, 2025, EPA and USACE issued a Memorandum to the Field addressing the CWA’s jurisdiction over wetlands in light of the regulatory landscape and the decision in Sackett. The purpose of the guidance is to provide national consistency on the scope of “adjacent wetlands” and the meaning of “continuous surface connection.” The March 12 guidance reiterates that USACE and EPA interpret WOTUS to include only those adjacent wetlands that have a continuous surface connection because they directly abut a WOTUS. The guidance provides that wetlands with only an intermittent, physically remote hydrologic connection to WOTUS do not have the necessary connection to covered waters that triggers CWA jurisdiction. The guidance concluded that an interpretation of “continuous surface connection” that allows for wetlands far removed from and not directly abutting covered waters to be jurisdictional as adjacent wetlands as the potential to violate the direct abutment requirement for adjacent wetlands in Sackett. Therefore, the guidance rescinded any components of guidance or training materials that assumed a discrete feature established a continuous surface connection.
On March 24, 2025, USACE and EPA published in the Federal Register a joint announcement of their intention to engage with stakeholders on the implementation of the definition of WOTUS in light of the Sackett decision. The Agencies indicated they would seek feedback on several topics during a series of public listening sessions and in written comments, including the scope of “relatively permanent” waters and to what features this phrase applies and the scope of “continuous surface connection” and to which features this phrase applies. Public comments on the notice were due on April 23, 2025, and thousands of comments were provided. In addition, listening sessions will take place virtually and in person April 29, 2025, through May 1, 2025. After the close of the public comment period, EPA and USACE are expected to issue a joint rulemaking to further refine the definition of WOTUS to align with Sackett; however, such changes are unlikely to be significantly substantially different from those already implemented through the September 2023 rulemaking.
With a narrower definition of WOTUS in place after Sackett, the reduced scope of the Clean Water Act’s jurisdiction will impact renewable energy development in several ways. First, because fewer adjacent wetlands will be deemed jurisdictional WOTUS under the Sackett regime as compared to the significant nexus test, there will not be Clean Water Act § 404 permitting obligations for such waters. Second, with the reduced scope of jurisdictional WOTUS, it is more likely that USACE will be issuing findings of no jurisdiction when it assesses whether WOTUS are present on a particular parcel; however, with reductions in the federal work force, such findings may more time to be issued. Finally, although the new rulemaking that EPA and USACE plan to issue is not expected to significantly change the definition of WOTUS, renewable energy developers should watch the rulemaking closely and be prepared to participate in the notice-and-comment process as needed. Continue to watch our blog for further developments on this topic.
[View source.]
