The Environmental Protection Agency (EPA) announced a new Waters of the United States (WOTUS) rule in response to a May Supreme Court ruling that curtailed which waters are subject to federal Clean Water Act protections.
The revised WOTUS rule breaks from longstanding federal waters protections to require that protected wetlands have a clearer link to waterways like oceans and rivers.
The new post-Sackett rule revises the January definition to remove the “significant nexus” standard that was the basis of the earlier rule. It also says wetlands protected under the Clean Water Act must have a continuous surface connection to navigable waterways as required by the Sackett ruling.
EPA Administrator Michael Regan said in a statement that the agency had no choice but to narrow the rule’s scope following the Sackett v. EPA decision, in which the Supreme Court’s conservative majority wrote that protections could only apply where there is a “continuous surface connection” to a protected body of water.
“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.”
National Stone, Sand & Gravel Association (NSSGA) President and CEO Michael Johnson issued the following statement on the final WOTUS rule
“NSSGA has long sought a clear and reasonable WOTUS rule, and unfortunately today’s version is not that,” Johnson said. “The May 25 Supreme Court opinion on Sackett was clear: the federal jurisdiction must be based on a surface connection to navigable water. Since then, the agencies have dragged their feet and even halted important determinations and permit reviews our members need to build and modernize our country’s infrastructure in an environmentally friendly manner. This rule does not align with the clear, unanimous Sackett decision.”