The new EPA/Corps’ rule defining “waters of the United States” (WOTUS) fails to adequately comply with AGC-backed Supreme Court decision striking down key aspects of the previous rule, leaving key permitting questions unresolved and the new rule itself subject to legal challenge.

As anticipated and reported by AGC, on August 29, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (agencies) revised their earlier 2023 definition of “waters of the United States” (WOTUS). The agencies are calling it the “conforming WOTUS rule” – reporting that it conforms to the U.S. Supreme Court’s Sackett v. Environmental Protection Agency decision that struck down key aspects of the 2023 WOTUS rule.  On the contrary, AGC and its coalition partners (see summary) find that the revised rule does not adequately comply with Supreme Court precedent, expressing disappointment that it makes only strategic cuts to the previous definition and warning that it remains legally vulnerable. 

The agencies made only a few minor edits to the 2023 WOTUS definition, per clear and irrefutable direction from the High Court in Sackett­, notably –

• Revising the adjacency test when identifying federally jurisdictional wetlands (and clarifying that interstate wetlands do not fall within the interstate waters category), and
• Removal of the “significant nexus” test.

AGC is disappointed that the agencies gave no further content and left many definitions/terms vague and ambiguous, creating a host of issues with the application of the “relatively permanent” standard, for example.  Indeed, the agencies were only willing to do what was irrefutably required, likely leaving the regulated community in a state of confusion and once again resorting to case-by-case decisions on whether the feds have control over construction work in ephemeral waterways and seasonally dry intermittent tributaries.

Even though the agencies did not ask for public comment during this latest WOTUS revision process, AGC and more than 40 business organizations representing every segment of the American economy warned the agencies in a July 24 letter that “surgically” amending portions of its rule issued earlier this year to account for Sackett would not be enough to withstand legal scrutiny.  The same coalition continues to urge the agencies to move forward expeditiously with issuing approved jurisdictional determinations, the pause of which is stalling critical infrastructure projects and the backlog is growing. 

The latest WOTUS rule takes effect upon publication in the Federal Register. The agencies will explain more on webinars during September (see registration below). See also the related materials below.  

• Conforming WOTUS rule: https://www.epa.gov/system/files/documents/2023-08/Pre-publication%20Version%20of%20the%20Final%20Rule%20-%20Amendments%20to%20the%20Revised%20Definition%20of%20Waters%20of%20the%20United%20States.pdf
• Redlined version: Regulatory Text Changes to the Definition of Waters of the United States at 33 CFR 328.3 and 40 CFR 120.2 (epa.gov)
• Accompanying fact sheet: https://www.epa.gov/system/files/documents/2023-08/FINAL_WOTUSPublicFactSheet08292023.pdf
• Webinar registration: September 12 webinar (full); September 13 (1pm-2pm Eastern Time); September 20 (3pm-4pm Eastern Time)    

As a result of ongoing litigation on the 2023 WOTUS rule, the agencies will implement and enforce today’s “conforming WOTUS rule” in 23 states, the District of Columbia, and the U.S. Territories. In the other 27 states and for certain parties, the agencies are interpreting WOTUS as consistent with the pre-2015 regulatory regime and the Sackett decision until further notice.  (See here regarding AGC’s ongoing litigation and list of 27 states where Biden’s 2023 WOTUS rule is not in effect).  The “pre-2015 regulatory regime” refers to the agencies’ 1986/1988 regulations at 40 CFR 230.3(s) that define WOTUS, implemented consistent with relevant case law and guidance.

AGC has been fighting Biden’s 2023 WOTUS rule in all branches of government through regulatory comments, AGC Action Alerts to Congress, an amicus brief to the US Supreme Court in the Sackett case, and in filing lawsuits in two federal district courts – all making a strong case that it’s overly broad, confusing to implement and illegal. 

For more information, contact Leah Pilconis at [email protected] or Melinda Tomaino at [email protected].