The United States Environmental Protection Agency and Army Corps
of Engineers (the Agencies) closed out 2022 by announcing a final
rule that establishes a new definition of "waters of the
United States" (WOTUS) for implementation of the Clean Water
Act.1 The Agencies, which previously indicated there
would be a two-step regulatory process to defining WOTUS, appear to
be proclaiming this to be its "durable" revision for the
long term. But will this definition of WOTUS get washed away like
its predecessors?
Rule Overview
As previously discussed, in July 2021, the Agencies announced a
two-step process to replace the 2020 Navigable Waters Protection
Rule defining WOTUS for the Clean Water Act.2 First, the
Agencies indicated they would move quickly to restore the 1986-era
regulations that were on the books, subject to limitations in
Supreme Court decisions, before the "Clean Water Rule" of
2015. Second, the Agencies would adopt a new, more expansive, and
"durable"
