(AGENPARL) – mar 29 agosto 2023 Issued: Aug 29, 2023 (12:14pm EDT)
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To Conform with Recent Supreme Court Decision, EPA and Army Amend “Waters of
the United States” Rule
WASHINGTON (August 29, 2023) – Today, the U.S. Environmental Protection
Agency (EPA) and the U.S. Department of the Army (the agencies) announced a
final rule amending the 2023 definition of “waters of the United States”
to conform with the recent Supreme Court decision in Sackett v. EPA. The
agencies are committed to following the law and implementing the Clean Water
Act to deliver the essential protections that safeguard the nation’s waters
from pollution and degradation. This action provides the clarity that is
needed to advance these goals, while moving forward with infrastructure
projects, economic opportunities, and agricultural activities.
“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,” said EPA Administrator Michael S.
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.”
“We have worked with EPA to expeditiously develop a rule to incorporate
changes required as a result of the Supreme Court’s decision in Sackett,”
said Michael L. Connor, Assistant Secretary of the Army for Civil Works.
“With this final rule, the Corps can resume issuing approved jurisdictional
determinations that were paused in light of the Sackett decision. Moving
forward, the Corps will continue to protect and restore the nation’s waters
in support of jobs and healthy communities.
While EPA’s and Army’s 2023 rule defining “waters of the United
States” was not directly before the Supreme Court, the decision in Sackett
made clear that certain aspects of the 2023 rule are invalid. The amendments
issued today are limited and change only parts of the 2023 rule that are
invalid under the Sackett v. EPA decision. For example, today’s final rule
removes the significant nexus test from consideration when identifying
tributaries and other waters as federally protected.
The Supreme Court’s Decision in Sackett v. EPA, issued on May 25, 2023,
created uncertainty for Clean Water Act implementation. The agencies are
issuing this amendment to the 2023 rule expeditiously—three months after the
Supreme Court decision—to provide clarity and a path forward consistent with
the ruling. With this action, the Army Corps of Engineers will resume issuing
all jurisdictional determinations. Because the sole purpose of this rule is to
amend specific provisions of the 2023 Rule that are invalid under Sackett, the
rule will take effect immediately.
The agencies will work with state, Tribal and local partners to safeguard
waters in need of protection following the Sackett v. EPA decision and will
continue to use all available tools to protect public health and provide
clarity for stakeholders.
The agencies will host a public webinar on September 12, 2023 to provide
updates on the definition of “waters of the United States.” For
registration information, please visit EPA’s webpage for the amendments
rule. The agencies also plan to host listening sessions this fall with
co-regulators and stakeholders, focusing on identifying issues that may arise
outside this limited rule to conform the definition of “waters of the United
States” with the Sackett v. EPA decision.
Learn more about this action on EPA’s “waters of the United States”
website.
Background
On January 18, 2023, the agencies published a final rule revising the
definition of “waters of the United States”, which became effective on
March 20, 2023. On May 25, 2023, the Supreme Court issued a decision in the
case of Sackett v. EPA.
The Clean Water Act prohibits the discharge of pollutants from a point source
into “navigable waters” unless otherwise authorized under the Act.
“Navigable waters” are defined in the Act as “the waters of the United
States, including the territorial seas.” Thus, “waters of the United
States” is a threshold term establishing the geographic scope of federal
jurisdiction under the Clean Water Act. The term “waters of the United
States” is not defined by the Act but has been defined by the agencies in
regulations since the 1970s and jointly implemented in the agencies’
respective programmatic activities.
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