Waters of the US: EPA announces rules change

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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 โ€“ย 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 โ€œwaters 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 nationโ€™s 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.

โ€œWhile I am disappointed by the Supreme Courtโ€™s 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 โ€œWeโ€™ve moved quickly to finalize amendments to the definition of โ€˜waters of the United Statesโ€™ to provide a clear path forward that adheres to the Supreme Courtโ€™s 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€

โ€œWe have worked with EPA to expeditiously develop a rule to incorporate changes required as a result of the Supreme Courtโ€™s decision inย Sackett,โ€ saidย Michael L. Connor,ย Assistant Secretary of the Army for Civil Works. โ€œWith 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 nationโ€™s waters in support of jobs and healthy communities.

While EPAโ€™s and Armyโ€™s 2023 rule defining โ€œwaters 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, todayโ€™s final rule removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected.

The Supreme Courtโ€™s 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 expeditiouslyโ€”three months after the Supreme Court decisionโ€”to 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 โ€œwaters of the United States.โ€ For registration information, please visit EPAโ€™sย webpage for the amendments ruleOpens in a new tab.. 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 โ€œwaters of the United Statesโ€ with theย Sackett v. EPAย decision.

Learn more about this action onย EPAโ€™s โ€œwaters of the United Statesโ€ websiteOpens in a new tab..

Background
On January 18, 2023, the agencies published aย final ruleOpens in a new tab.ย revising the definition of โ€œwaters of the United Statesโ€, which became effective on March 20, 2023. On May 25, 2023, the Supreme Court issued a decision in the case ofย Sackett v. EPA.

The Clean Water Act prohibits the discharge of pollutants from a point source into โ€œnavigable watersโ€ unless otherwise authorized under the Act. โ€œNavigable watersโ€ are defined in the Act as โ€œthe waters of the United States, including the territorial seas.โ€ Thus, โ€œwaters of the United Statesโ€ is a threshold term establishing the geographic scope of federal jurisdiction under the Clean Water Act. The term โ€œwaters 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.

Deborah

Since 1995, Deborah has owned and operated LegalTech LLC with a focus on water rights. Before moving to Arizona in 1986, she worked as a quality control analyst for Honeywell and in commercial real estate, both in Texas. She learned about Arizona's water rights from the late and great attorney Michael Brophy of Ryley, Carlock & Applewhite. Her side interests are writing (and reading), Wordpress programming and much more.

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