Audit, Compliance and Risk Blog

On September 8, 2023, the US Environmental Protection Agency (EPA) and US Army Corps of Engineers (Corps) adopted revised definitions of “waters of the United States” (WOTUS) which is a critical but undefined term in the Clean Water Act (CWA). As I’ve discussed repeatedly, the agencies, potentially regulated entities, and others have disputed possible definitions for decades. Most recently, in May 2023 the US Supreme Court adjusted its own precedent to over-rule definitions adopted by EPA and the Corps in January 2023 (I discussed the January rules HERE, and the Supreme Court decision (Sackett v. EPA) HERE). The rest of this note identifies the newest regulatory (re)definitions, adopted to conform the agencies’ regulations to the latest Supreme Court guidance restricting the types of wetlands potentially considered to be WOTUS subject to CWA regulation.

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On November 22, the US Environmental Protection Agency (EPA) announced the success of its ongoing National Compliance Initiative for “Reducing Significant Non-Compliance (SNC) with NPDES Permits,” addressing high levels of non-compliance with individual permits to discharge water pollutants under the Clean Water Act’s (CWA’s) National Pollutant Discharge Elimination system (NPDES). EPA started the Initiative in fiscal year (FY) 2018, in cooperation with delegated state water quality agencies, after compiling and evaluating permit holders’ data showing significant non-compliance by over 20% of the 46,000 permitted facilities around the country. The Initiative’s goal has been to cut non-compliance in half by the end of FY 2022. EPA’s November 22 report claims that this goal has been exceeded, with significant non-compliance rates down to 9%.

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On April 23, a six-member majority of the United States Supreme Court issued a decision that narrows the uncertainty about when a discharge of water pollutants to groundwater may require a Clean Water Act (CWA) permit (County of Maui v. Hawaii Wildlife Fund). The decision directly vacates the Ninth Circuit Court of Appeals decision it reviews, and effectively over-rules decisions by the Fourth and Sixth Circuits that differed with the Ninth Circuit but are also inconsistent with the Supreme Court’s new analysis. It also overturns guidance issued by the Environmental Protection Agency (EPA) in 2019 categorically excluding discharges from point sources to groundwater from regulation under the CWA National Pollutant Discharge Elimination System (NPDES) permit program; EPA's policy applied nationwide except in those three judicial circuits.

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