‘Waters of the United States’ Redefined – EPA and the Corps Issue Conforming WOTUS Rule in Wake of the Sackett Decision Narrowing the ‘Reach’ of the Clean Water Act
Environmental, Energy & Climate Change Law and Regulation Reporter, Volume 4, Number 1
On September 8, 2023, the U.S. Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps) (collectively referred to as the Conforming Rule) amending their January 18, 2023 Revised Definition of Waters of the United States (WOTUS) rule (Revised Definition) to conform with the U.S. Supreme Court’s holding in Sackett v. EPA (88 Fed. Reg. 61964 [Sept. 8, 2023]). The Conforming Rule is a limited series of amendments that nip and tuck the Revised Definition to fit within the bounds of the Supreme Court’s recent narrowing the “reach” of the Clean Water Act (CWA). The Conforming Rule is effective immediately and the Agencies are not providing opportunity for public notice or comment. Importantly, the Conforming Rule does not wholly replace the Revised Definition, but merely amends aspects of the Revised Definition that were considered nonconforming in the wake of Sackett (e.g., eliminating the significant nexus standard and defining “adjacent” to mean “a continuous surface connection”) while maintaining the other provisions.
As a result of ongoing litigation surrounding the Revised Definition, the Agencies will implement the Revised Definition, as amended by the Conforming Rule, in 23 states (including California), the District of Columbia, and the U.S. Territories. In the other 27 states, the Agencies are interpreting “WOTUS” consistent with the pre-2015 regulatory regime, as it conforms with the decision in Sackett.
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