US EPA and Army Corps Announce Final Rule Amending WOTUS

UPDATE:  On September 8, 2023, the final rule was published in the Federal Register.  The rule is now in effect, as of September 8, 2023.

On August 29, 2023, the U.S. EPA and U.S. Army Corps of Engineers announced a pre-publication version of their final rule amending the definition of “waters of the United States” (WOTUS) in response to the Sackett v. EPA decision issued by the U.S. Supreme Court earlier this year. 

The agencies previously issued a “Revised Definition of ‘Waters of the United States’” rule on January 18, 2023 (88 FR 3004) (the 2023 Rule), just a few months before the Supreme Court issued a decision in Sackett v. EPA on May 25, 2023, which invalidated certain key portions of the 2023 Rule. 

The amendments to the 2023 Rule address the portions of the rule that were deemed invalid under the Sackett decision. Most significantly, the amended rule no longer allows for implementation of the significant nexus test to identify tributaries and other waters as federally protected. It also revises the adjacency test to mean “having a continuous surface connection”; clarifies that interstate wetlands do not fall within the interstate waters category; and explains the types of features to be considered under the “additional waters” category. 

No changes were made to the rule as it impacts traditional navigable waters, territorial seas, and impoundments. Moreover, the 2023 Rule included eight specific exclusions from the definition, which remain unchanged.  These exclusions include prior converted cropland; waste treatment systems, including treatment ponds or lagoons; ditches that do not carry a relatively permanent flow of water; artificially irrigated areas; artificial lakes or ponds; artificial reflecting pools or swimming pools; waterfilled depressions; and swales and erosion features with low volume, infrequent, or short duration flow.

Notably, the agencies state that because the sole purpose of the amended rule is to amend specific provisions of the 2023 Rule to conform with Sackett, the amended rule does not involve any exercise of agency discretion and, therefore, does not require public notice or comment. For these same reasons, and to provide more clarity and certainty to the regulated community and the public, the agencies state that the rule will become immediately effective upon publication, relying on the “good cause” authority set forth in the Administrative Procedures Act (5 U.S.C. 553(d)(3)).

Industry groups and others have already indicated they will challenge the final rule on any available procedural and substantive grounds.