The Environmental Protection Agency and the U.S. Army Corps of Engineers on Aug. 29 issued a final rule that conforms the definition of “waters of the United States” to a Supreme Court decision issued this year.
At issue is a May 2023 decision issued by the Supreme Court that involves the scope of the Clean Water Act and, more specifically, whether an appeals court set forth the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act (CWA).
The ruling in Sackett v. EPA was based on an appeal by a family of the U.S. Court of Appeals for the Ninth Circuit's ruling that they needed a CWA permit to build a home on their property. The court ruled in a 9-0 opinion that the wetlands on the property are not subject to CWA jurisdiction.
The Sackett decision eliminated the “significant nexus” test for determining whether any waters are jurisdictional while also excluding “adjacent” wetlands and “interstate wetlands” from the definition of jurisdiction waters under the CWA.
The agencies’ amendments changed the parts of the 2023 WOTUS rule definition that were invalid by the Sackett decision. For example, the rule removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected.
It also revises the adjacency test when identifying federally jurisdictional wetlands, clarifies that interstate wetlands do not fall within the interstate waters category, and clarifies the types of features that can be considered under the “additional waters” category.
The final rule does not change the eight exclusions from the definition of “waters of the United States.”
The agencies finalized the rule without issuing a proposal and an opportunity for the public to comment under the Administrative Procedures Act “good cause” provision, arguing that public comment and notice are unnecessary because the Sackett decision renders certain aspects of the 2023 Rule invalid and inconsistent with the court reading of the Clean Water Act.
According to the agencies, the final rule is effective immediately upon publication in the Federal Register because the rule does not impose any burdens on the regulated community and merely conforms to the 2023 Rule to the Sackett court decision.
The final rule will go into effect in 23 states. The 2023 Rule, as amended by the final rule, remains on hold in 27 states and for certain parties.
In the other 27 states and for certain parties, the agencies are interpreting "waters of the United States" consistent with the pre-2015 regulatory regime and the Supreme Court's decision in Sackett until further notice. EPA’s webpage on the WOTUS litigation status is available here.
The final rule is likely to be challenged based on the substance of the changes or the agencies’ position that the final rule did not require notice and comment (or both).
The agencies are hosting a public webinar to provide updates on the definition of “waters of the United States” on September 12, 2023, from 3 pm-4 pm ET. To register, click here.
The agencies have also provided a redline strike out of the regulatory text changes.