August 30, 2023 — Following the U.S. Supreme Court ruling in Sackett v. EPA in May this year, the application of Waters of the US received stricter criteria.ย Accordingly, the EPA announced that it was amending its rules to comply with the Court’s order.ย The following is a press release published on the EPA’s website yesterday:
EPA Press Release re: Waters of the US.
WASHINGTONย โย Today, 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 โwaters of the United Statesโ to conform with the recent Supreme Court decision inย Sackett v. EPA. The agencies are committed to following the law and implementing the Clean Water Act to deliver the essential protections that safeguard the nationโs waters from pollution and degradation. This action provides the clarity that is needed to advance these goals, while moving forward with infrastructure projects, economic opportunities, and agricultural activities.
โWhile I am disappointed by the Supreme Courtโs decision in theย Sackettย case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, Tribes, and partners,” saidย EPA Administrator Michael S. Regan.ย โWeโve moved quickly to finalize amendments to the definition of โwaters of the United Statesโ to provide a clear path forward that adheres to the Supreme Courtโs ruling.ย EPA will never waver from our responsibility to ensure clean water for all. Moving forward, we will do everything we can with our existing authorities and resources to help communities, states, and Tribes protect the clean water upon which we all depend.โ
โWe have worked with EPA to expeditiously develop a rule to incorporate changes required as a result of the Supreme Courtโs decision inย Sackett,โ saidย Michael L. Connor,ย Assistant Secretary of the Army for Civil Works. โWith this final rule, the Corps can resume issuing approved jurisdictional determinations that were paused in light of theย Sackettย decision. Moving forward, the Corps will continue to protect and restore the nationโs waters in support of jobs and healthy communities.
While EPAโs and Armyโs 2023 rule defining โwaters of the United Statesโ was not directly before the Supreme Court,ย the decision inย Sackettย made clear that certain aspects of the 2023 rule are invalid. The amendments issued today are limited and change only parts of the 2023 rule that are invalid under theย Sackett v. EPAย decision.ย For example, todayโs final rule removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected.
The Supreme Courtโs Decision inย Sackett v. EPA, issued on May 25, 2023, created uncertainty for Clean Water Act implementation. The agencies are issuing this amendment to the 2023 rule expeditiouslyโthree months after the Supreme Court decisionโto provide clarity and a path forward consistent with the ruling. With this action, the Army Corps of Engineers will resume issuing all jurisdictional determinations.ย Because the sole purpose of this rule is to amend specific provisions of the 2023 Rule that are invalid underย Sackett, the rule will take effect immediately.
The agencies will work with state, Tribal and local partners to safeguard waters in need of protection following theย Sackett v. EPAย decision and will continue to use all available tools to protect public health and provide clarity for stakeholders.
The agencies willย host a public webinar on September 12, 2023 to provide updates on the definition of โwaters of the United States.โ For registration information, please visit EPAโsย webpage for the amendments rule. 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 โwaters of the United Statesโ with theย Sackett v. EPAย decision.
Learn more about this action onย EPAโs โwaters of the United Statesโ website
Background
On January 18, 2023, the agencies published aย final rule
The Clean Water Act prohibits the discharge of pollutants from a point source into โnavigable watersโ unless otherwise authorized under the Act. โNavigable watersโ are defined in the Act as โthe waters of the United States, including the territorial seas.โ Thus, โwaters of the United Statesโ is a threshold term establishing the geographic scope of federal jurisdiction under the Clean Water Act. The term โwaters of the United Statesโ is not defined by the Act but has been defined by the agencies in regulations since the 1970s and jointly implemented in the agenciesโ respective programmatic activities.
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