EPA Amends "Waters of the United States" Rule

On Tuesday, August 29, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army 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. Because the rule new amends a prior regulation that the administration finalized in January, the agencies opted to skip the public notice and comment period and move directly to a final rule.

The rule creates two separate WOTUS standards depending on the state, roughly splitting the country in half. The new rule applies in 23 states and the District of Columbia. Federal courts enjoined the January rule in the other 27 states. In those states, the EPA is applying a waters standard that was in effect before 2015, plus constraints outlined in the Sackett ruling.

The new rule - at just twenty pages in length - is a fraction of the length of its predecessors and speaks to the Administration's interest, albeit forced by a Supreme Court ruling, to be short and simple in its approach.

Most notably, the rule removes the "significant nexus" test, struck down by the Supreme Court, which had been the test for determining which waterways and wetlands fell under federal jurisdiction. The new definition also rewrites what is considered "adjacent wetlands" by removing language that allowed wetlands that were not physically connected to a broader river system to be included. Instead, wetlands now require a continuous surface connection.

Litigation Likely

This new rule, like its predecessors, will undoubtedly spur fresh litigation. “This revised rule does not adequately comply with Supreme Court precedent and with the limits on regulatory jurisdiction set forth in the Clean Water Act,” and “defies” the law, said Courtney Briggs, chair of the Waters Advocacy Coalition, which includes the American Petroleum Institute, the American Farm Bureau Federation, and dozens of other industry groups.

Briggs said the group is particularly concerned that the EPA didn’t clearly define “relatively permanent” waters. She said the EPA stated in 2008 that relatively permanent waters should run at least one season per year, but the post-Sackett rule doesn’t clarify the January rule’s suggestion that other waters that flow less often could also qualify.

As noted earlier, this rule circumvented the standard notice and comment efforts typically required in agency rulemaking efforts. The agencies relied on the rarely used "good cause" exception to the Administrative Procedure Act's notice-and-comment process which allows federal agencies forgo public comment when a rule update is sufficiently urgent.

Some groups may challenge the rule simply on this administrative complaint, though the agencies will likely contend that the Sackett ruling created an urgency situation when it left no legal rules in place to govern wetlands and waterways.

The rule will be final once it is published in the Federal Register and will be effective immediately.

The agencies will host a public webinar on the rule on Sept. 12, and plan to hold listening sessions on it this fall "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."

Read the final rule here.

Read the accompanying fact sheet here.