EPA’s Federal Waters Update Seen Vulnerable
From Bloomberg Law (link below: A test for federal Clean Water Act jurisdiction over waterways and wetlands that is central to an EPA rule announced last week will make the rule especially vulnerable to an upcoming US Supreme Court ruling, water lawyers say.
The Environmental Protection Agency and the Army Corps of Engineers published their final definition of “waters of the US,” or WOTUS, on Dec. 30—the latest iteration of a Clean Water Act regulation that has shifted in each presidential administration since 2008.
The 2023 rule, which will take effect 60 days after it is published in the Federal Register, is based on a rule that was in effect before 2015. It governs which surface waters are protected from pollution by the federal government by determining if they are “relatively permanent” or have a “significant nexus” with larger navigable waterways.
The rule (RIN: 2040-AG19) was issued while the Supreme Court prepares to rule in Sackett v. EPA, which grapples with the “significant nexus” test. The court’s conservative majority was skeptical of that test during the October oral argument. The court is expected to rule in the coming months.
The EPA has also included a new framework for evaluating waterway and wetlands protections, including whether the waters are “similarly situated” with other jurisdictional waters in a region or in their “catchment area.”
“This is a substantial expansion compared to the pre-2015 framework,”
“Practically speaking, the final rule will require landowners, farmers, and ranchers to conduct a watershed-wide assessment of all waters to understand if a wet area on their property may be jurisdictional.”
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