The U.S. Environmental Protection Agency intends to issue a final rule on the Waters of the United States by Sept. 1, 2023, amending the Biden WOTUS Rule. According to the notice, the agency is appearing to forego public comment and strike language from the rule related to the nexus test.
In response, the Waters Advocacy Coalition, representing 45 organizations including farmers, sent a letter this week urging the EPA and the U.S. Army Corps of Engineers to reconsider their key interpretations of the WOTUS rule.
The coalition requests that the definition of WOTUS not include ditches and to revise the definition of “adjacent” to clarify that wetlands only fall under the rule if they’re indistinguishable part of another WOTUS.
“The WOTUS rule has profound implications on nearly every corner of the American economy, so it is vital that the federal government gets it right,” said Courtney Briggs, WAC chair. “We respect the agencies’ attempt to swiftly bring the rule into compliance with the Supreme Court’s Sackett decision, but a simple strike of isolated regulatory language is not a sufficient approach. We urge the EPA and Army Corps to thoroughly evaluate the rule’s legal basis to ensure it remains consistent with Supreme Court precedent.”
The letter outlines the coalition’s key recommendations for the agencies as they revise the 2023 WOTUS rule, which includes:
- Eliminating standalone interstate waters and wetlands
- Adopting a relatively permanent standard consistent with Supreme Court precedent, excluding ditches
- Clarifying the rule’s definition of adjacent in accordance with the Supreme Court’s opinion in Sackett v. EPA
- Retaining the rule’s codified exclusions
The EPA and Corps had originally announced their intention to release a final rule consistent with the Sackett ruling on May 25.
The Office of Management and Budget session is scheduled for July 27 with the Waters Advocacy Coalition and the American Road and Transport Builders Association. Eight total meetings have been arranged to review the final rule.
Other meetings will be held on July 31 with the Responsible Industry for a Sound Environment and the National Mining Association.
Edison Electric Institute, the National Association of Homebuilders, and the National Stone and Gravel Association will meet on Aug 1.
The American Farm Bureau Federation will cap the series of meetings on Aug. 4.
