Following the U.S. Supreme Court’s decision in Sackett v. EPA, 598 U.S. 651 (2023), the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) (collectively the agencies) have promulgated a direct final “conforming” rule (the Conforming Rule) that revises the agencies’ January 2023 definition of “waters of the United States” (WOTUS) to conform with the Court’s decision. While the Sackett Court sought to settle jurisdictional questions under the Clean Water Act (CWA), the Conforming Rule may simply be the start of a new era of contention over what constitutes WOTUS and how waters outside the scope of the CWA are regulated.
