The ups and downs of Waters of the United States (WOTUS) legislation have been a problematic issue for the regulated community and attorneys for many years. It has typically shifted with each change in administration at the Presidential level, often requiring those impacted by the regulation change how they comply with the law. This ultimately impacts how they do business and has led to the Chamber and most of the business community as a whole asking for regulatory certainty. The Supreme Court of the United States took up this issue in Sackett v. the U.S. Environmental Protection Agency (EPA), published May 25. Most people thought that finally there was regulatory certainty, including the EPA.
On August 29, the EPA and Department of the Army issued a final rule to amend the final WOTUS rule, published in the Federal Register on January 18. This final rule conforms the definition of “waters of the United States” to the U.S. Supreme Court’s decision in the case of Sackett v. EPA because parts of the EPA’s January 2023 rule are invalid under the Supreme Court’s interpretation of the Clean Water Act in the Sackett decision. Therefore, the agencies amended key aspects of the regulatory text to conform to the Court’s decision. The conforming rule became effective on September 8.
But the rollercoaster ride continues!
Last month, the Clean Water Act of 2023 was unveiled by more than 100 members of the U.S. House of Representatives. The proposal would reinstate a Reagan-era definition of protected waters, while also codifying permitting exemptions for activities including agriculture, mining and construction, waste treatment and artificial features like swimming pools. The legislation would also have the EPA and the Army Corps of Engineers periodically review Clean Water Act exemptions in order to make any changes in keeping with current science.
While this bill is not likely to gain traction under the current makeup of the House, it does create further – or continued – uncertainty as to what exactly the definition of WOTUS will be. Stay tuned!
