EPA and the Army Corps of Engineers are scrapping the “significant nexus” standard to determine when waters or wetlands are covered by the Clean Water Act, as well as their definition of “adjacent wetlands,” to comply with the Supreme Court’s decision in Sackett v. EPA.
The court’s May 25 ruling was hailed by industry groups, including the American Farm Bureau Federation and numerous commodity groups, for adopting a test requiring that waters be “relatively permanent” in order to be jurisdictional.
The agencies decided to issue the revised rule without public notice and comment, reasoning that they had “good cause” to skip public input.
“Because the sole purpose of this rule is to amend these specific provisions of the 2023 rule to conform with Sackett, and such conforming amendments do not involve the exercise of the agencies’ discretion, providing advance public notice and seeking comment is unnecessary,” they said in the rule.
In a news release, EPA and the Corps said the court’s decision “created uncertainty for Clean Water Act implementation” and that they were issuing the revisions “expeditiously — three months after the Supreme Court decision — to provide clarity and a path forward consistent with the ruling.”
The rule will take effect upon publication in the Federal Register.
The Sackett case concerned two Idaho landowners, Michael and Chantell Sackett, who contended that wetlands on their property were not "adjacent" under the CWA. Under the May 25 decision, "wetlands are not defined as 'adjacent' or jurisdictional under the Clean Water Act solely because they are 'bordering, contiguous, or neighboring . . . (or) separated from other ‘waters of the United States’ by man-made dikes or barriers, natural river berms, beach dunes and the like,'” the new rule notes.
The agencies also removed the term “interstate wetlands” from the March 2023 rule to conform with the Sackett decision.
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The court said in its opinion that after looking at the Clean Water Act and its statutory history, it “found the predecessor statute to the Clean Water Act covered and defined ‘interstate waters’ as ‘all rivers, lakes, and other waters that flow across or form a part of state boundaries.’”
“The court concluded that the use of the term ‘waters’ refers to such ‘open waters’ and not wetlands,” the final rule says. “As a result, under Sackett, the provision authorizing wetlands to be jurisdictional simply because they are interstate is invalid.”
EPA and the Corps plan to hold a webinar Sept. 12 on the amendments to the rule.
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This story will be updated.
