(Excerpts from USEPA Website)
On December 30, 2022, the Environmental Protection Agency and the U.S. Department of the Army (“the agencies”) announced the final “Revised Definition of ‘Waters of the United States'” rule. On January 18, 2023, the rule was published in the Federal Register, and the rule took effect on March 20, 2023. However, as a result of ongoing litigation, the agencies are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime in 27 States until further notice.
The agencies developed the 2023 Rule with consideration of the relevant provisions of the Clean Water Act and the statute as a whole, relevant Supreme Court case law, and the agencies’ technical expertise after more than 45 years of implementing the longstanding pre-2015 “waters of the United States” framework.
On March 19, 2023, a district court judge for the Southern District of Texas issued an order preliminarily enjoining in Idaho and Texas the 2023 Rule issued by EPA and the Department of the Army defining “waters of the United States.” On April 12, 2023, a district court judge in North Dakota issued an order preliminarily enjoining in 24 States the 2023 rule issued by EPA and the Department of the Army defining “waters of the United States.” These States include Alabama, Alaska, Arkansas, Florida, Georgia, Iowa, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, and Wyoming.
The agencies are reviewing these decisions and their options. The agencies continue to believe the rule, which is informed by the text of the relevant provisions of the Clean Water Act and the statute as a whole, as well as the scientific record, relevant Supreme Court case law, input from public comment, and the agencies’ experience and technical expertise after more than 45 years of implementing the longstanding pre-2015 regulations defining “waters of the United States,” is the best interpretation of the Clean Water Act.
Note: On May 10, 2023, the U.S. Court of Appeals for the Sixth Circuit issued an order granting the motions of Kentucky and plaintiffs-appellants for an injunction pending appeal of the district court’s decision. Commonwealth of Kentucky v. EPA (No. 23-5343) and Kentucky Chamber of Commerce, et al. v. EPA (No. 23-5345).
The agencies are reviewing these decisions and their options.
The agencies remain committed to establishing and implementing a durable definition of “waters of the United States” informed by diverse perspectives. Our goal is to protect public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and industries that depend on clean water.
If a state, Tribe, or an entity has specific questions about a pending jurisdictional determination or permit, please contact a local U.S. Army Corps of Engineers District office or the EPA.
The Supreme Court’s monumental ruling on the Clean Water Act likely means the Biden administration will have to define once again which wetlands are subject to federal regulation. This time, however, many wetlands are certain to wind up exempt. In the case of Sackett vs. EPA, the court threw out the “significant nexus” test outlined by Justice Anthony Kennedy in the 2006 Rapanos decision. That test said wetlands could be regulated if they, “alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters understood as navigable in the traditional sense.” EPA had specifically asked the court to defer to its new rule’s definition of “adjacent wetlands,” which relies on the Kennedy test, but the court declined. “That rule’s not going to survive any further,” said environmental attorney Rafe Petersen of Holland and Knight. Whereas previous SCOTUS decisions such as Rapanos provided EPA with some flexibility to continue to regulate broad classes of wetlands ephemeral streams, “I don’t think (Sackett) gives any wiggle room,” Petersen said.
The Supreme Court narrowed the authority of the federal government to regulate wetlands yesterday, deciding in favor of an Idaho couple and ending a 15-year legal battle. The unanimous ruling hinged on how directly connected a wetland is to a larger body of water, such as a lake (known as “navigable” waters). The saga began in 2007 when the couple began construction of a house on a lot near the edge of Priest Lake. Federal officials issued a stop work order, arguing that because the lot contained a wetland connected to the lake via a “non-navigable” creek, it was protected under the Clean Water Act, with the couple filing suit the following year. The court found that to be subject to regulation, a wetland must have continuous surface water connected to “navigable” waters. Three concurring opinions—different reasoning that reached the same decision—were filed. Separately, the court sided with a 94-year-old Minnesota woman, ruling Hennepin County officials violated her constitutional rights when they seized and sold her house over an unpaid tax bill.
No one was happier to see the ruling than Rep. John Duarte, a nursery owner who once was prosecuted for filling vernal pools as part of plowing a field. The California Republican learned about the decision as he came off the House floor Thursday morning. He later told Agri-Pulse’s Steve Davies that EPA or the Corps “should put out field guidance letters to property owners throughout America that set aside any jurisdictional claims they’ve had over isolated wetlands based on the significance test.” “The significant nexus test is gone,” Duarte said. “That means that prairie potholes, small depressions on properties, (and) vernal pools – common in California – are no longer jurisdictional under the Clean Water Act.” Duarte expects Congress to stay out of the issue. “I don’t see an appetite in Congress to award any additional authority here,” he said. Environmental groups and their congressional allies say the court’s 5-4 decision puts wetlands nationwide at risk. The opinion “undercuts the legal foundation of the new science-based WOTUS regulation, as it applies to wetlands,” Earthjustice said. “More than 118 million acres of formerly protected wetlands now face an existential threat from polluters and developers,” said Sam Sankar, the group’s senior vice president of programs.
More information, go to: https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf