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New WOTUS Rule Anticipated

09/04/2023

In compliance with the May 25th ruling by SCOTUS in Sackett v. EPA, the Agency and the U. S. Department of the Army intend to issue a revised Waters of the United States Rule amending the 2023 definition.

 

Michael S. Regan, Administrator of the EPA, stated, “While I am disappointed with the Supreme Court’s decision in the Sackett case, EPA and the Army have an obligation to apply this decision alongside our state co-regulators and partners.”  He added, “We have moved quickly to finalize amendments to the definition of WOTUS to provide a clear path forward that adheres to the Supreme Court ruling.”

 

Supporting this statement, Michael L. Connor, Assistant Secretary of the Army for Civil Works, stated, “We have worked with the EPA to expeditiously develop a rule to incorporate changes required as a result of the Supreme Court’s decision.”  He continued, “With this final rule, the Corps can resume issuing approved jurisdiction of determinations that were paused in the light of the Sackett decision.

 

The amendments issued by EPA address only those parts of the 2023 Rule that were rendered invalid by SCOTUS.  The most important component is removal of the “significant nexus” test to identify tributaries and streams that are protected by the Clean Water Act.

 

The National Cattlemen’s Beef Association, a determined opponent of the WOTUS final rule has issued a statement in which they “look forward to working with the EPA to protect farmers and ranchers from burdensome regulations and provide them with lasting certainty on WOTUS”.