New Year, New WOTUS Rule

EPA and the US Army Corps of Engineers announced on Friday, December 30, 2022, the final, pre-publication version of a "Revised Definition of 'Waters of the United States' ["WOTUS"]" rule. This 2022 WOTUS Rule will become effective 60 days after its publication in the Federal Register. The new Rule purports to return to the pre-2015 definition of WOTUS which was implemented by the agencies for over 40 years, and, according to an EPA fact sheet on the new Rule (available here), prioritizes "practical, on-the ground implementation by providing tools and resources to support timely and consistent jurisdictional determinations[.]"

The Clean Water Act (CWA), passed in 1972, does not define WOTUS, so from passage of the statute until 2001, agency interpretation of what WOTUS meant was set out by regulation and remained largely unchanged. In 2001, the U.S. Supreme Court interpreted the phrase in Solid Waste Agency of Northern Cook County v. United States Army Corps of