A release sent Aug. 29 by the U.S. Environmental Protection Agency 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.”
The release said, “The agencies are committed to following the law and implementing the Clean Water Act to deliver the essential protections that safeguard the nation’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.”
The release also said, “While EPA’s and Army’s 2023 rule defining ‘waters of the United States’ was not directly before the Supreme Court,the decision in Sackett 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 the Sackett v. EPA decision. For example, today’s final rule removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected.”
It also said, “The Supreme Court’s Decision in 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 expeditiously — three months after the Supreme Court decision — 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. Because the sole purpose of this rule is to amend specific provisions of the 2023 Rule that are invalid under Sackett, the rule will take effect immediately.”
EPA Administrator Michael S. Regan commented, “While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, Tribes, and partners; we’ve moved quickly to finalize amendments to the definition of ‘waters of the United States’ to provide a clear path forward that adheres to the Supreme Court’s ruling. 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.”
Michael L. Connor, Assistant Secretary of the Army for Civil Works, added, “We have worked with EPA to expeditiously develop a rule to incorporate changes required as a result of the Supreme Court’s decision in Sackett,” “With this final rule, the Corps can resume issuing approved jurisdictional determinations that were paused in light of the Sackett decision. Moving forward, the Corps will continue to protect and restore the nation’s waters in support of jobs and healthy communities.”
The release continued, “The agencies will work with state, Tribal and local partners to safeguard waters in need of protection following the Sackett v. EPA decision and will continue to use all available tools to protect public health and provide clarity for stakeholders.
“The agencies will host a public webinar on Sept. 12, 2023 to provide updates on the definition of ‘waters of the United States.’ For registration information, visit EPA’s 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 ‘waters of the United States’ with the Sackett v. EPA decision.”
More information is available from the EPA on EPA’s “waters of the United States” website.
