EPA to issue new WOTUS rule by Sept. 1

MARY HIGHTOWER 

FAYETTEVILLE, ARKANSAS

 The Environmental Protection Agency and the Army Corps of Engineers plan to issue a revised definition of waters of the United States, or WOTUS, by Sept. 1, the EPA said in a court filing on Monday.

The action follows the May 25 decision by the U.S. Supreme Court in Sackett vs. EPA, striking down the WOTUS definition issued in January 2023. WOTUS defines which bodies of water are regulated by the Clean Water Act, a landmark piece of legislation passed by Congress in 1972 to help improve water quality nationwide.

Brigit Rollins, staff attorney for the National Agricultural Law Center, said that the high court’s decision appeared to overrule the portions of the 2023 rule that:

• Extended EPA jurisdiction to any bodies of water that are not open, flowing “streams, oceans, rivers and lakes” and
• Extended EPA jurisdiction to any wetlands that don’t share a continuous surface connection with streams, oceans, rivers and lakes, including wetlands that are separated from a recognized WOTUS by a natural or man-made barrier. 

“The EPA has said it will interpret WOTUS consistent with the Sackett decision,” Rollins said. “It’s still unclear what exactly that final rule will look like, but that EPA plans to issue a new WOTUS rule before the end of the year is definitely interesting, given the regulatory process can take a long time.”

Generally, the federal rule-making process involves issuing a proposed rule. The proposed rule needs to be open for public comment for at least 60 days before a final rule is issued. The rule-making agency would then be expected to respond to those public comments.

“Given that Sept. 1 isn’t actually all that far away, that would be a quick turnaround time,” Rollins said.

The EPA signaled its intentions in a motion to stay filed Mondayin the case State of West Virginia and American Farm Bureau Federation vs. EPA and Chickaloon Village Traditional Council, which is being heard in a federal court in North Dakota.

The motion said, “Federal defendants intend to issue a final rule on or before Sept. 1, 2023. In light of [the] federal defendants’ forthcoming rule, a stay of this case will best preserve the parties’ resources and conserve judicial economy.

“Federal defendants’ new rule may resolve, or at least narrow, the issues in this case. A stay will allow the parties time to assess the new rule and determine whether to continue to litigate this case,” the motion stated. 

Rollins will be speaking about the SCOTUS decision on July 19, the second part of her two-part webinar series on WOTUS.

For information about the National Agricultural Law Center, visit nationalaglawcenter.org or follow @Nataglaw on Twitter. The National Agricultural Law Center is also on Facebook and LinkedIn.

For updates on agricultural law and policy developments, subscribe to The Feed, the National Agricultural Law Center’s twice-monthly newsletter highlighting recent legal developments facing agriculture. ∆

MARY HIGHTOWER: University of Arkansas