“We have worked with EPA to expeditiously develop a rule to incorporate changes required as a result of the Supreme Court’s decision in Sackett,” said Michael L. Connor, Assistant Secretary of the Army for Civil Works.
While the agency changed parts of the 2023 rule that were invalid under the recent court decision, the rule has remained primarily unchanged. New EPA guidelines remove the “significant nexus” test from consideration when determining what waters are federally protected and clarifies that interstate wetlands do not automatically qualify as interstate waters.
“We have worked with EPA to expeditiously develop a rule to incorporate changes required as a result of the Supreme Court’s decision in Sackett,” wrote Connor. “With this final rule, the Corps can resume issuing approved jurisdictional determinations that were paused in light of the Sackett decision. Moving forward, the Corps will continue to protect and restore the nation’s waters in support of jobs and healthy communities.”
While agriculture groups praise the removal of the “significant nexus” test, many affected agricultural groups are not on board with the lack of changes made.
American Farm Bureau Federation President Zippy Duvall commented on the Biden Administration’s revised Waters of the U.S. Rule saying, “EPA had a golden opportunity to write a Waters of the U.S. Rule that’s fair to farmers and stands the test of time, but instead chose to continue government overreach and revise only a small slice of the rule that was rejected by the Supreme Court.”
Tedd McKinney with the National Association of State Departments of Agriculture also voiced his concerns: “The ruling in Sackett v. EPA was a chance for EPA and the Army Corps to correct a deeply flawed, prematurely released rule and work to truly improve water quality outcomes. It is baffling that the revised rule does not accurately address all the issues and questions raised by the Supreme Court in the Sackett decision, nor does it address many of the questions stakeholder groups raised about the WOTUS rule EPA released at the end of last year.”
Said National Association of Wheat Growers CEO Chandler Goule: “While we recognize the intent to bring more clarity to wheat growers concerning waters subject to Clean Water Act jurisdiction, we are concerned about the repercussions for our members’ farming operations. The intricate ‘significant nexus’ standard posed challenges for our growers, both in comprehension and alignment with the Clean Water Act. NAWG is disappointed both agencies are proceeding with these regulatory adjustments without public consultation on the proposed changes prior to finalizing the regulation.”
EPA will conduct a public webinar on Sept. 12 to offer additional updates on the new rule. The agency also plans to host a series of listening sessions this fall, including co-regulators and stakeholders.
»Related: Op-ed: Indiana fighting WOTUS overreach of Biden’s EPA
