EPA and Army Corps Redefine Waters of the United States

The Army Corps of Engineers and the Environmental Protection Agency have revised their rule regarding what defines “Waters of the United States”, to conform with a U.S. Supreme Court ruling on May 23 in a several years-long legal battle over the geographic area covered by the Clean Water Act.

“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army Corps 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".

“The Clean Water Act extends only to wetlands that have a continuous surface connection with 'waters' of the United States — i.e., with a relatively permanent body of water connected to traditional interstate navigable waters, making it difficult to determine where the water ends and the wetland begins,” according to a summary of the decision from the Supreme Court of the U.S. Blog.

A previous rule from the EPA and Army Corps of Engineers had been challenged by a wide range of organizations involved in agriculture, forest management, and ranching, as well as real estate and development organizations.

One comment regarding the Supreme Court’s decision came from the Association of State Departments of Agriculture:

“The Supreme Court’s unanimous decision in Sackett v. EPA today comes as welcome news to farmers, landowners, and state departments of agriculture who sought clarity on what has been an over-litigated issue for decades,” McKinney said. “We take relief in this decision as the justices clearly state the ‘significant nexus theory is particularly implausible’ and the EPA has no statutory basis to impose the standard.”

The EPA’s announcement of the rule change and information about webinars explaining the rule change are available here: Link