EPA Issues Amendment to Waters of the U.S. Rule Following Sackett Decision

The U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps), on August 29, 2023, issued a direct final rule amending the scope of “Waters of the United States” as defined in Clean Water Act (CWA) regulations. The final rule implements the U.S. Supreme Court’s recent decision in Sackett v. EPA, in which the Court held that only wetlands adjacent to Waters of the U.S. with a continuous surface connection to relatively permanent waters adjoining interstate navigable waters are to be regulated as jurisdictional waters.

The final rule follows on the heels of the “Revised Definition of ‘Waters of the United States’ ” rule, which EPA issued on January 18, 2023, and revises the categories of jurisdictional waters provided in the January rule. The final rule provides the following key changes to the scope of Waters of the U.S.:

• removes regulatory text that had implemented the “significant nexus” test previously used to identify certain waters, such as tributaries, wetlands, and intrastate lakes and ponds as federally protected under the CWA
• narrows the definition of federally regulated “adjacent” wetlands to mean only wetlands that have a continuous surface connection to jurisdictional waters
• removes interstate wetlands as Waters of the U.S.

EPA Administrator Michael Regan explains that the current amendments are specifically intended to implement the Court’s holding in Sackett, and the final rule was therefore issued without opportunity for public comment.

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