To Conform with Recent Supreme Court Decision, EPA and Army Amend “Waters of the United States” Rule

To Conform with Recent Supreme Court Decision, EPA and Army Amend “Waters of the United States” Rule

On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army (the agencies) announced a final rule amending the 2023 definition of “waters of the United States” to conform with the recent Supreme Court decision in Sackett v. EPA. While the 2023 rule defining “waters of the United States” was not directly before the Supreme Court, the decision in Sackett made clear that certain aspects of the 2023 rule were invalid. The amendments issued are limited and change only parts of the 2023 rule that are invalid under the Sackett v. EPA decision.

Herring River, Cape Cod, Massachusetts

The Supreme Court’s decision in Sackett v. EPA, issued on May 25, 2023, created uncertainty for Clean Water Act implementation. The agencies issued this amendment to the 2023 rule three months after the Supreme Court decision to provide clarity and a path forward consistent with the ruling. Because the sole purpose of this rule was to amend specific provisions of the 2023 Rule that are invalid under Sackett, the rule took effect immediately. With this action, the Army Corps of Engineers resumed issuing all jurisdictional determinations.

“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. “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."

The amendments to the revised EPA-Army WOTUS final rule, which will take effect once published in the Federal Register, modifies an earlier proposal they released in January 2023. The updated version removes the contentious “significant nexus standard” for tributaries and adjacent wetlands.

Environmental advocates favored the significant nexus test because it allowed ephemeral and intermittent streams and headwaters to be protected in cases where they had an ecological connection to larger water bodies. The significant nexus test also applied to wetlands considered “adjacent” to those larger water bodies. The new rule revises the definition of “adjacent” to specify that it applies only with continuous surface connections.

Construction industry and agricultural groups have favored the less inclusive definition which required protection for waters that had a permanent surface connection to “navigable” waters.

There are some terms that will need to be defined through guidance. For instance, the agencies will need to define whether “relatively permanent” means only perennial streams or whether it also includes some intermittent streams. The agencies will also likely need to further define “continuous surface water connection” in some circumstances.

The agencies hosted a public webinar on September 12, 2023, to provide updates on the definition of “waters of the United States.” The agencies also plan to host listening sessions this fall with co-regulators and stakeholders, focusing on identifying issues that may arise outside this limited rule to conform the definition of “waters of the United States” with the Sackett v. EPA decision. Learn more about this action on EPA’s “waters of the United States” website.

The Clean Water Act prohibits the discharge of pollutants from a point source into “navigable waters” unless otherwise authorized under the Act. “Navigable waters” are defined in the Act as “the waters of the United States, including the territorial seas.” Thus, “waters of the United States” is a threshold term establishing the geographic scope of federal jurisdiction under the Clean Water Act. The term “waters of the United States” is not defined by the Act but has been defined by the agencies in regulations since the 1970s and jointly implemented in the agencies’ respective programmatic activities.

Photo Credit
Michaelann Bewsee, Flickr
September 15, 2023