EPA and Army Issue Revised WOTUS Definition

The week of August 28, 2023, the Environmental Protection Agency (EPA) and the Department of the Army issued “….a final rule amending the 2023 definition of “waters of the United States” [WOTUS] to conform with the recent Supreme Court decision in Sackett v. EPA. The agencies are committed to following the law and implementing the Clean Water Act to deliver the essential protections that safeguard the nation’s waters from pollution and degradation. This action provides the clarity that is needed to advance these goals, while moving forward with infrastructure projects, economic opportunities, and agricultural activities.”

“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, Tribes, and partners,” said EPA Administrator Michael S. Regan. “We’ve moved quickly to finalize amendments to the definition of ‘waters of the United States’ to provide a clear path forward that adheres to the Supreme Court’s ruling. EPA will never waver from our responsibility to ensure clean water for all. Moving forward, we will do everything we can with our existing authorities and resources to help communities, states, and Tribes protect the clean water upon which we all depend.” [text quoted is from EPA’s Press Release]

A copy of the pre-publication Federal Register amended rule is here (Pre-publication Version of the Final Rule – Amendments to the Revised Definition of Waters of the United States). Also here is (1) an EPA/Department of the Army Fact Sheet (FINAL_WOTUSPublicFactSheet08292023) and (2) a document (Regulatory Text Changes to the Definition of Waters of the United States at 33 CFR 328.3 and 40 CFR 120.2)showing the specific changes to Code of Federal Regulations text [40 CFR 120.2 and 33 CFR 328.3]. Once published in the Federal Register, the amended rule will be in effect.

EPA and the Department of the Army will hold a public webinar on the amended rule on September 12, 2023 (registration for this webinar is already at maximum capacity and new registrations are not available). EPA and the Department of Army plan to schedule two additional public webinars in September (information on dates and times is not yet available).

EPA Press Release