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| 1 minute read

No Funny Business: USEPA and Army Corps Rule Revision Conforms to Supreme Court's Sackett Decision

Today, USEPA and the Army Corps released revisions to its 2023 "Waters of the United States" (WOTUs) rule to conform it to the United States Supreme Court's May 25, 2023 Sackett decision, and the agencies played it right down the middle of the fairway.  The conforming rule will be immediately effective upon publication.  The reg text amendments track the Court's decision and appear to refrain from either attempting to add additional interpretation or exploit much-discussed dicta in the Court's decision acknowledging "temporary interruptions" in surface connection can occur due to "low tides or dry spells."  Instead, the reg text faithfully strikes interstate wetlands, the definition of "significantly affect" and limits adjacency to those waters having "a continuous surface connection." 

And that is good because the rule revisions were fast-tracked using a provision of the Administrative Procedure Act (APA) that allows an agency for good cause to issue a final rule without following public notice and comment procedures.  Here, the agencies determined that public review and comment is unecessary because the sole purpose of the rule is to amend specific provisions to conform to the Court's decision.  It appears they have done just that...and no more. 

"The final rule provides clarity for protecting our nation's waters consistent with the Supreme Court's decision while advancing infrastructure projects, economic opportunities, and agricultural activities."


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