The U.S. EPA and U.S. Department of the Army have announced a final rule amending the 2023 definition of “waters of the United States” (WOTUS), to conform with the U.S. Supreme Court’s decision in Sackett v. EPA.
The Supreme Court’s decision on Sackett v. EPA was a major ruling for WOTUS under the Clean Water Act, significantly cutting EPA’s ability to regulate wetlands. While WOTUS was not directly before the court in this case, its decision on the regulatory status of wetlands had likely invalidated EPA’s latest 2023 definition.
“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, Tribes, and partners," said EPA Administrator Michael S. Regan in a press release. “We’ve moved quickly to finalize amendments to the definition of ‘waters of the United States’ to provide a clear path forward that adheres to the Supreme Court’s ruling.”
EPA and the Army announced the final rule on August 29, 2023. The final rule circumvented public notice and comment procedures.
“We have worked with EPA to expeditiously develop a rule to incorporate changes required as a result of the Supreme Court’s decision in Sackett,” said Michael L. Connor, Assistant Secretary of the Army for Civil Works, in a press release. “With this final rule, the Corps can resume issuing approved jurisdictional determinations that were paused in light of the Sackett decision. Moving forward, the Corps will continue to protect and restore the nation’s waters in support of jobs and healthy communities.
EPA said that the amendments changed only parts of the 2023 rule that were invalidated by the Sackett v. EPA decision, such as by removing the “significant nexus” test from the rule and amending its definition of “adjacent.”
The “significant nexus standard” that the 2023 rule had used was a test to identify waters that could be regulated as part of WOTUS under the Clean Water Act. According to EPA, the test identified waters that “either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters.”
However, the Supreme Court’s decision in Sackett v. EPA claimed that WOTUS includes “only those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes.”
According to the Supreme Court, wetlands can only be considered part of WOTUS when they have “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands.”