Further Revisions to the EPA “WOTUS” Rule

Date: September 06, 2023

Revision complicates the definition of WOTUS

The definition and federal jurisdiction over Waters of the United States (WOTUS) is changing yet again. The Environmental Protection Agency (EPA) and Army Corps of Engineers issued a rule amending the “Revised Definition of ‘Waters of the United States’” rule from January 2023, in response to the Supreme Court decision in Sackett v. EPA.

“Earlier this year, the U.S. Supreme Court ruled in favor of small businesses and clarified the WOTUS standard for small employers and landowners,” said Beth Milito, Executive Director of the NFIB Small Business Legal Center. “The revised rule further complicates the standard and definition of WOTUS, which disproportionately impacts small businesses. We are disappointed by the revised rule and the agencies’ decision to block public input. We urge the administration to follow the guidance of the Supreme Court.”

The Supreme Court’s interpretation of the Clean Water Act (CWA) in Sackett rendered portions of the January 2023 rule invalid. NFIB was disappointed in the revised rule, which failed to provide any guidance on what “relatively permanent” means. These changes provide less clarity for small business owners after the final rule became effective on March 20, 2023.

NFIB applauded the U.S. Supreme Court’s decision in Sackett v. EPA, which affirmed the limits set by Congress and limited the authorities granted under the CWA. NFIB filed an amicus brief in the case arguing for a clear and consistent standard for WOTUS regulations.

Under the CWA, the WOTUS Rule determines which bodies of water fall under federal jurisdiction. Over the years, presidential administrations have applied very different standards regarding when the federal government has jurisdiction over – and can regulate – wetlands. NFIB will continue to urge the administration to set a clear standard so small business owners know if their land falls under WOTUS.

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