Note and Corrigendum by Kip Hansen  — 2 September 2023

It seems that I was too quick off the mark on the EPA v SCOTUS story in my recent piece here at WUWT.

Brief Summary:   In March 2023, the Supreme Court of the United States (SCOTUS) ruled against the EPA in a very important case named Sackett v. Environmental Protection Agency, No. 21-454 [ copy of the decision in this .pdf ].  In that ruling, the Court stated that the Waters of the United States  (WOTUS) rule currently used by the EPA and the US Army Corps of Engineers was unconstitutional for a variety of reasons – dealing with being arbitrary and vague and lacking authority under the Clean Water Act.  The EPA was told:

“In sum, we hold that the CWA [Clean Water Act] extends to only those “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so that they are “indistinguishable” from those waters. ….. This holding compels reversal here. The wetlands on the Sacketts’ property are distinguishable from any possibly covered waters.”

This ruling thus required the EPA (and Corps of Engineers) to re-write their operational definition of the Waters of the United States.

The “new rule” was announced on the 29^th of August.   And I wrote about it on the 30^th of August.  The EPA webpage issuing the announcement was last edited on 1 September, but there is no note as to when it first went live. 

As of the 30^th of August the new “new rule” was not yet in effect and searching for the “new” WOTUS rule led to the rule I discussed, which was no different than the “old” rule. 

But with a hat tip (and a song and dance) to reader “Chris”;  there is actually a new new rule (almost) in which the EPA complies with the SCOTUS ruling after all.

The New New Rule is not yet the “rule of the land” – but it will be.  The EPA has publicized “Amendments to the “Revised Definition of ‘Waters of the United States’”.   Please note that “The conforming rule will become effective upon publication in the Federal Register.”

I have verified that once the “conforming rule” becomes effective, it will adhere to the standards required by SCOTUS, which are basically that wetlands are only under the jurisdiction of EPA/Corps of Engineers under the CWA if they have “a continuous surface connection”  to a body of water that legitimately is considered a water of the United States.  This wording replaces the vague “significant nexus standard” and complies with the SCOTUS ruling “That the CWA jurisdiction applies  “only those “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so that they are “indistinguishable” from those waters.”

Using Google Search, I have not been able to confirm that the “Amendments” have been published in the Federal Register as of today. I trust that they either have been or will soon be so published and in effect.

Bottom Line:

1.  Slow down there boy!  Wait for the dust to settle before writing.

2.  The EPA will comply with SCOTUS and has Amendments doing so prepared to be published (may have been publish in the last 24 hrs).

3.  This is a tremendous win for the citizens of the United States – curtailing the overreach of the EPA on wetlands.

4.  My often-wet lawn is now safe from the long arm of the EPA. Under the old rule, it qualified as a wetland that could fall under the jurisdiction of the EPA.

# # # # #

Author’s Comment:

Writing here is always an adventure and those of us that do so gain as much from readers as vice versa.

Many thanks to the readers only known as “Chris” who unearthed the Amendments announcement.

Thanks for reading.

# # # # #