New Waters of the US Rule Takes Immediate Effect
Effective September 8, 2023, EPA and the US Army amended the Code of Federal Regulations (CFR) to re-define ‘‘waters of the United States” (WOTUS). The latest update adjusts provisions that were invalidated by unanimous Supreme Court decision on Sackett v. EPA earlier this year.
The new Final Rule amends EPA's previous WOTUS rule, finalized in January 2023, to adjust details that did not conform to the court's recent Sackett decision.
Specifically, the agencies revised 40 CFR 120.2 and 33 CFR 328.3.
What Did the Supreme Court Decide in Sackett?
The Sackett v. EPA case began in 2007 when US EPA ordered a property owning family (the Sacketts) to cease development on private land because the property contained wetlands that the agency believed to be protected by the Clean Water Act (due to proximity to a protected lake).
After nearly 16 years, the case concluded, and Justice Alito gave the Court’s current interpretation:
"To determine when a wetland is part of adjacent "waters of the United States,".."waters" may be fairly read to include only wetlands that are "indistinguishable from waters of the United States."
This occurs only when wetlands have "a continuous surface connection to bodies that are 'waters of the United States' in their own right, so that there is no clear demarcation between 'waters' and 'wetlands.'"
Sackett v. EPA. "Slip Opinion." Alito, J. Decided May 25, 2023. [Emphasis Lion's]
Professionals in industry need a clear definition of "Waters of the United States" they can use to make decisions about compliance. With the long-running Sackett case decided and a new rule in effect now, it seems we may have a definition of WOTUS that is here to stay.
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