NACD Government Affairs Update: Final Rule Conforms WOTUS Definition to Supreme Court Decision

By Libby Wawro, NACD Natural Resource Policy Specialist

On August 29, 2023 the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) published a press release about the “final rule to amend the final “Revised Definition of ‘Waters of the United States’ (WOTUS) rule,” published in the Federal Register in January. This final rule conforms the definition of WOTUS to the U.S. Supreme Court’s May 25, 2023, decision in the case of Sackett v. EPA.”

The agencies held a meeting for agricultural groups to answer questions and explain the rationale behind some of the decisions. The main takeaway from the conversation with the agencies is that EPA and USACE will continue to engage with stakeholders through listening sessions and consultation throughout the fall. The revised rule was written narrowly and in line with the guidance of the Sackett decision, effectively excising significant nexus from consideration of jurisdiction. As this is a final rule, as amended, the states not involved in litigation will continue under the current definition, as amended, and the states who are enjoined from the Final Rule will be under the 2015 definition with guidance from the Sackett decision. The amendments are highlighted by redline revisions in the regulatory language and a short preamble explaining the changes.

Various agricultural groups such as the National Association of State Departments of Agriculture (NASDA), American Farm Bureau Federation (AFBF), and the National Cattlemen’s Beef Association (NCBA) have already released public statements about the new rule. Most comments share a similar concern that the agencies have not gone far enough and are potentially missing the intent of the Sackett decision with the narrow revision.

A pre-publication version of the final rule is available on EPA’s website.

The agencies plan to host a public webinar providing an overview of the final rule on September 12, 2023. Event details including registration information will be posted to EPA’s website.

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