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Clean Water Act Updates: Will Changes to WOTUS and the Water Quality Certification Rule Affect Your Project?

12-10-2021

By Irina Lapina and Taya MacLean 

Section 404 Waters of the United States definitions

Recently, Waters of the United States (WOTUS) definitions under Section 404 of the Clean Water Act changed, which will have an immediate effect on any project proposing impacts to streams, lakes, ponds, ditches, or/and wetlands.

In August 2021, the most recent WOTUS definitions and rule was vacated nationwide following a U.S. District Court of Arizona order. The order takes us back to the pre-2015 definition of WOTUS from 1986 and the Supreme Court’s 2006 Rapanos and Carabell decisions regarding significant nexus. Based on the pre-2015 significant nexus rule, the agencies will place greater protection over wetlands or waters for which “flow characteristics and functions would significantly affect the chemical, physical, and biological integrity of downstream traditional navigable waters.”

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