Final WOTUS definition to be revised

Press Release:

The Environmental Protection Agency and the U.S. Department of the Army (agencies) are in receipt of the U.S. Supreme Court’s May 25, 2023, decision in the case of Sackett v. Environmental Protection Agency. In light of this decision, the agencies are interpreting “waters of the United States” consistent with the Supreme Court’s decision in Sackett. The agencies are developing a rule to amend the final “Revised Definition of ‘Waters of the United States'” rule, published in the Federal Register on January 18, 2023, consistent with the U.S. Supreme Court’s May 25, 2023 decision in the case of Sackett v. Environmental Protection Agency. The agencies intend to issue a final rule by September 1, 2023.

EPA Press Office, June 26, 2023

The Agencies have announced their intent to revise their draft definition of Waters of the United States to be consistent with SCOTUS’ decision on the Sackett v EPA case. According to their press release, they have not indicated that they will be issuing a draft rule to be published for public comment. It is likely that they will follow an exemption made within the Administrative Procedures Act (APA) that states “when the agency has “good cause” to find the usual proposed rulemaking notice and comment process would be “impracticable, unnecessary, or contrary to the public interest,” the agency may skip this step and proceed to issue a final rule”.

With this exemption in place, the EPA and USACE’s final definition of Waters of the United States will be published in the federal register by September 1, 2023.

Resources

January Definition of Waters of the US

Sackett v EPA Decision

Congressional Letter to Agencies

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