EPA and Army amend WOTUS rule

New amendment comes on the heels of the Supreme Court decision in Sakett vs. EPA.

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 “waters of the United States” to conform with the recent Supreme Court decision in Sackett v. EPA.

While EPA’s and Army’s 2023 rule defining “waters of the United States” was not directly before the Supreme Court’s Decision in Sackett v. EPA, issued on May 25, 2023, it made clear that certain aspects of the 2023 rule are invalid. The amendments issued are limited and change only parts of the 2023 rule that are invalid under the Sackett v. EPA decision. For example, the final rule removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected.

U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army said the agencies issued this amendment to the 2023 rule 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.

According to the release, 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, to provide updates on the definition of “waters of the United States.” For registration information, please visit EPA’s webpage for the amendments rule. The agencies also plan to host listening sessions this fall with coregulators and stakeholders to focus 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.

Learn more about this action on EPA’s “waters of the United States” website.

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