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On Aug. 29, the U.S. Environmental Protection Agency and Army Corps of Engineers issued a final rule and fact sheet regarding amendments to the definition of “waters of the United States” subject to Clean Water Act regulation. This rule is aimed at bringing the January 2023 WOTUS final rule into compliance with the U.S. Supreme Court’s May 25 decision in Sackett v. Environmental Protection Agency.

ABC issued a statement in response to the rule, with Vice President of Regulatory, Labor and State Affairs Ben Brubeck stating:

“Unfortunately, these revisions fail to fully implement the U.S. Supreme Court’s ruling in Sackett v. Environmental Protection Agency, which placed clear boundaries on the scope of the federal government’s authority while maintaining reasonable environmental protections for America’s waterways.

“Instead, this rule, issued without meaningful opportunities for input from the construction industry and other stakeholders, will contribute to continued regulatory uncertainty and unnecessary delays for critical infrastructure projects across the nation. ABC urges the Biden administration to issue broader revisions to WOTUS in full compliance with the Supreme Court’s decision.”

The final rule makes these adjustments to WOTUS:

  • Removes the “significant nexus” test entirely
  • Removes the “interstate wetland” category
  • Adjusts the definition of “adjacent waters” to mean “having a continuous surface connection”

The rule implements some of the key wins from the Sackett decision. However, it fails to fully implement the court’s opinion, including on the definition of “relatively permanent” waters, and may result in continued regulatory uncertainty. ABC previously submitted recommendations to the agencies regarding implementation of Sackett as part of the Waters Advocacy Coalition.

The final rule will immediately take effect upon publication in the Federal Register. At that time, the amended version of the January 2023 final rule will be in effect, except in states where it is currently blocked by a preliminary injunction.