The U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army announced a final rule amending the 2023 definition of the Waters of the United States (WOTUS), saying it conforms with the recent Supreme Court decision in Sackett v. EPA. While the EPA said its action provides the clarity that is needed to advance projects, many argue that it does not.
The agencies’ 2023 Rule defining WOTUS was not directly before the Supreme Court. The decision in Sackett, however, made clear that certain aspects of the 2023 Rule were invalid. Instead of withdrawing the 2023 Rule and submitting a more comprehensive policy that addresses all the questions raised by the Supreme Court, the agencies rushed forward with amendments that changed only the parts of the 2023 Rule that are invalid under Sackett. For example, one of the amendments removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected. Another clarifies that wetlands protected under the Clean Water Act must have continuous surface contact with navigable waters.
“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,” the EPA said. The Army Corps of Engineers will resume issuing all jurisdictional determinations.
“Earlier this year, the U.S. Supreme Court provided an important check to the federal government’s jurisdiction over water and land features,” said Rich Nolan, president and CEO for the National Mining Association (NMA). “Now, just three months later, the administration returns with a revised WOTUS rule that perpetuates prior government overreach, infringing on state authority, and disregarding the court’s call for clarity, creating more regulatory confusion and uncertainty when just the opposite is needed.
“The mining industry is committed to protecting our nation’s treasured water resources and we support responsible regulatory efforts to achieve that end, but this rule simply misses the mark by irresponsibly ignoring the intent of the Supreme Court,” Nolan said.