August 29, 2023
U.S. EPA and the U.S. Army Corps of Engineers issued its final rule to amend the final “Revised Definition of ‘Waters of the United States’” (WOTUS) rule today which was initially published in the Federal Register on Jan. 1, 2023. This final rule issued today alters the WOTUS definition to reflect the U.S. Supreme Court’s May 25, 2023 decision in the Sackett v. EPA case. In Sackett, the Court rejected its previous position that wetlands with a “significant nexus” but no continuous surface water connection with a downstream river, lake, or stream were still covered as “Waters of the United States” and entitled to federal protection under the Clean Water Act. The parts of the January 2023 Rule implementing the “significant nexus” test are now invalid under the new SCOTUS interpretation of the Clean Water Act in the Sackett decision.
In response to the new final rule, Scott Strand, Managing Attorney at the Environmental Law & Policy Center, said:
“This is a sad moment for clean water and wetlands protection in the Midwest and across the United States. EPA has been forced to curtail the reach of the Clean Water Act as a result of a U.S. Supreme Court decision that substituted its judgment about protecting sources of clean water over the consensus of scientific and expert opinion and contrary to the intent of Congress. More than 90% of all wetlands have disappeared in some Midwest states and EPA’s final rule further limits the protections available to the little that’s left of those critical resources.
“ELPC will continue to fight for stronger state-level protections of wetlands in the Midwest because wetlands are important to keep our drinking water clean and ample, to prevent unnecessary flood damage by retaining stormwater, and to provide critical wildlife habitat. The health of our entire interconnected system of waterways and waterbodies depends on effective wetlands protection.”