Waters of the U.S Update

Alexus Kelley News, WOTUS

May 26, 2023

On May 25, 2023, the United States Supreme Court (Supreme Court) modified the definition of “waters of the U.S.,” reducing the jurisdiction of the Clean Water Act over wetlands adjacent to bodies of water that do not have a continuous surface connection to other known waters of the U.S. Under Sackett v Environmental Protection Agency, No. 21-454, the Supreme Court decided the “Clean Water Act extends only to wetlands with a continuous surface connection to bodies that are ‘waters of the U.S.’ in their own right so that they are indistinguishable from those waters” (598 U.S. 27 (2023)). This decision will likely reduce the scope of jurisdiction over many wetlands in Colorado and nationwide. Based on this court decision and potential loss of wetland protection, Colorado is evaluating implementation of statewide regulations to conserve and protect waters of the state. ERO is tracking this issue and will notify clients with any new information. It is likely that jurisdictional determinations will be on hold until the Environmental Protection Agency and U.S. Army Corps of Engineers (Corps) determine how to proceed under this new ruling. We anticipate that the agencies will develop regulatory guidance consistent with this decision much like they did following the Supreme Court’s decision in Rapanos v. United States. The agency guidance may extend beyond wetlands to other types of waters that typically lack a continuous surface connection to bodies that are ”waters of the U.S.” in their own right (e.g., ephemeral and intermittent drainages) or be more limited in scope to wetlands based on the language of the Sackett decision.

Next Steps

ERO will continue to consult with our local Corps offices and update our clients on any developments as the new rule is implemented.  Please feel free to contact your ERO project manager or info@eroresources.com if you have any questions. 

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