Waters Advocacy Coalition letter with recommendations on post-Sackett rule revisions

Waters Advocacy Coalition (WAC) – representing 45 organizations that reflect a broad cross-section of small businesses, farmers, energy producers and job creators – in a letter on Monday urged the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers to carefully reconsider key interpretations in the 2023 Waters of the United States (WOTUS) rule as the agencies revise the rule to align with the Supreme Court’s opinion in Sackett v. EPA.

In their letter, WAC members wrote,“EPA and the Corps have stated that they intend to issue a final rule by September 1, 2023 that amends the Biden WOTUS Rule to ensure consistency with the decision in Sackett. Based on this truncated rulemaking timeline, it appears that the Agencies will forego public comment and simply strike language from the rule related to the significant nexus test as well as the definition of ‘adjacent,’ while reinforcing the Agencies’ interpretation of the ‘relatively permanent’ test set forth in the preamble. That is not a defensible response to Sackett or an appropriate approach to this rulemaking.”

The letter outlines the coalition’s key recommendations for the agencies as they revise the 2023 WOTUS rule, which include:

• 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 Sackett; and
• Retaining the rule’s codified exclusions.