WOTUS woes continue with revised final rule

The EPA and Army Corps of Engineers issued a final rule to amend the final “Revised Definition" of WOTUS rule.
The final rule revision results from the Supreme Court’s interpretation of the Clean Water Act in the Sackett decision.

The U.S. Environmental Protection Agency and Army Corps of Engineers, Washington D.C., issued a final rule to amend the final “Revised Definition of ‘Waters of the United States’” rule, or WOTUS.  

The change results from the Supreme Court’s interpretation of the Clean Water Act in the Sackett decision. 

“While EPA took an important step for our industry by removing the significant nexus standard from federal regulation following the Supreme Court’s Sackett decision, there remain significant challenges with the scope of federal Clean Water Act jurisdiction,” says Nathan Bowen, Irrigation Association vice president of public affairs and advocacy. “This, combined with EPA’s lack of consultation with stakeholders on this week’s action and the impact of ongoing separate litigation on the scope of the Biden Administration’s WOTUS rule, continue to underscore the necessity of clear and workable requirements for industry.” 

The new rule outlines six “key changes” to the January 2023 WOTUS rule. The amendments to the January 2023 Rule do not change the eight established exclusions from the definition of WOTUS, which includes prior converted cropland and artificially irrigated areas. 

The rule will ultimately help protect clean water regulations, EPA Administrator Michael Regan said in a statement in light of the final rule. 

“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,” says Regan. “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.” 

The ruling squandered a crucial chance to create fair legislation, says Zippy Duvall, American Farm Bureau Federation president.  

“EPA had a golden opportunity to write a Waters of the U.S. Rule that’s fair to farmers and stands the test of time, but instead chose to continue government overreach and revise only a small slice of the rule that was rejected by the Supreme Court,” says Duvall. “We’re pleased the vague and confusing ‘significant nexus’ test has been eliminated as the Supreme Court dictated. But EPA has ignored other clear concerns raised by the justices, 26 states and farmers across the country about the rule’s failure to respect private property rights and the Clean Water Act. Farmers and ranchers share the goal of protecting the resources they’re entrusted with. They deserve a rule that respects farmers as partners in that effort.” 

EPA and the Army Corps of Engineers will host a public webinar on Sept. 12, 2023, to “provide updates on the definition of ‘Waters of the United States.’”  

Registration information will be available here. 

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