The Environmental Protection Agency (EPA) and US Department of the Army in late June reported that they are amending the final revised definition of Water of the United States (WOTUS) in response to the US Supreme Court’s May 25 decision in Sacket v. EPA and will be interpreting WOTUS “consistent with the Supreme Court’s decision in Sackett.”
The agencies said they intend to issue a final WOTUS rule by Sept. 1, 2023. At an earlier hearing before the US House Transportation and Infrastructure Committee on June 22, Assistant Secretary of the Army for Civil Works Michael Connor said the Army Corps would be pausing all Clean Water Act (CWA) jurisdictional determinations until a revised WOTUS definition is complete.
The Supreme Court’s 5-4 ruling in Sackett limited the agencies’ regulatory authority over wetlands under the Clean Water Act (CWA), saying the CWA extends only to “wetlands with a continuous surface connection” to water bodies that are already protected as permanent and directly connected to a traditional navigable water (GM May 26, p. 1).
The ruling countered the “significant nexus” standard that guided EPA’s latest WOTUS definition, which was published in late December (GM Jan. 6, p. 1) and went into effect on March 20. Legal challenges prevented the new definition from being implemented in all states, however (GM April 14, p. 1).
The latest updates from EPA and the Corps followed a letter from Republican lawmakers on June 21 requesting information from both agencies on how the Biden Administration planned to rewrite WOTUS after the Sackett decision (GM June 30, p. 1). In the letter, the lawmakers charged that EPA and the Corp had delayed implementing the Supreme Court ruling by unnecessarily freezing the review and issuance of approved jurisdictional determinations (AJDs), delaying the permitting process for projects.
On June 28, a coalition of 18 ag and industry groups filed a motion in U.S. District Court for the Southern District of Texas asking the court to vacate the Biden Administration’s WOTUS rule nationwide, and to require the federal agencies to promulgate a new rule in 45 days while processing AJDs and permits in the meantime.
“The Business Plaintiffs have been caught in the regulatory whiplash created by the long-running cycle of shifting agency interpretations and judicial disapproval of those interpretations, the motion states. “In light of Sackett, it is time for this Court to tell the Agencies ‘in no uncertain terms, that enough is enough’ and order that a new proposed rule be promulgated within 45 days and Sackett’s clear rules apply to AJDs in the interim.”
“In Sackett v. EPA, the Supreme Court unanimously ruled that the EPA had overstepped its authority under the Clean Water Act,” said Mary-Thomas Hart, Chief Counsel for the National Cattlemen’s Beef Association, one of the plaintiffs filing the motion. “A full rewrite of the Biden Administration’s WOTUS definition is the only path to comply with the Sackett decision. NCBA is seeking summary judgement in our lawsuit against the Biden WOTUS rule and urging the Southern District of Texas to strike the rule from the books.”