This week, the Waters Advocacy Coalition (WAC) in the U.S., which represents 45 organizations that reflect a broad cross-section of small businesses, farmers, energy producers and job creators –urged the Environmental Protection Agency (EPA) and the Army Corps of Engineers to carefully reconsider key interpretations in the 2023 Waters of the United States (WOTUS) rule as the agencies revise the rule to align with the Supreme Court’s opinion in Sackett v. EPA.

In its letter on Monday, WAC members wrote, “EPA and the Corps have stated that they intend to issue a final rule by September 1, 2023, that amends the Biden WOTUS Rule to ensure consistency with the decision in Sackett. Based on this truncated rulemaking timeline, it appears that the Agencies will forego public comment and simply strike language from the rule related to the significant nexus test as well as the definition of ‘adjacent,’ while reinforcing the Agencies’ interpretation of the ‘relatively permanent’ test set forth in the preamble. That is not a defensible response to Sackett or an appropriate approach to this rulemaking.”

The letter outlined the coalition’s key recommendations for the agencies as they revise the 2023 WOTUS rule, which include:

  • Eliminating standalone interstate waters and wetlands;
  • Adopting a relatively permanent standard consistent with Supreme Court precedent; excluding ditches,
  • Clarifying the rule’s definition of adjacent in accordance with Sackett; and
  • Retaining the rule’s codified exclusions.

“Sackett reinforces numerous key principles that WAC has long highlighted. For instance, to be durable and defensible, any definition of WOTUS must not significantly impinge on the States’ traditional and primary authority over land and water use. A definition that pushes the outer limits of the Agencies’ CWA authority and fails to give adequate weight to the Section 101(b) policy would be legally vulnerable and would undermine the Agencies’ stated goal of establishing a durable rule,” warned WAC in its letter.

A copy of the 10-page letter can be downloaded here and includes an appendix of the signatories.

“The WOTUS rule has profound implications on nearly every corner of the American economy, so it is vital that the federal government gets it right,” said Courtney Briggs, WAC chair. “We respect the agencies’ attempt to swiftly bring the rule into compliance with the Supreme Court’s Sackett decision, but a simple strike of isolated regulatory language is not a sufficient approach. We urge the EPA and Army Corps to thoroughly evaluate the rule’s legal basis to ensure it remains consistent with Supreme Court precedent.”