On August 29, 2023, the Biden administration released a prepublication edition of a new final Clean Water Act rule ―known as the “Conforming Rule― modifying the definition of the term “waters of the United States” (WOTUS). The change was enacted in light of the U.S. Supreme Court’s ruling in Sackett v. EPA, published on May 25, 2023.
With the implementation of the Conforming Rule, both the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers, jointly referred to as “the Agencies,” will revise the previous specification, announced on January 18, 2023.
The “waters of the United States” has always been a contentious definition. The term broadly encompasses oceans, rivers, and other bodies of water falling within the country’s bounds. However, with this latest act, the ambiguity around its peripheries will presumably narrow.
The Sackett v. EPA ruling played a major role in instigating this revision. The Court’s decision questioned the extent of the “waters of the United States” criteria and coinciding regulatory overreach. Taking into account this verdict, the Biden administration engineered the Conforming rule to reportedly provide clarity and reduce ambiguity pertaining to the stipulation.
The long-term effects of this revised rule remain to be seen. However, its implications on industries and corporations interacting with or based around these water bodies could be significant, potentially altering compliance obligations and operations.
This noteworthy shift in policy falls under the larger umbrella of Biden’s commitment to environmental regulation and preservation efforts.
For more details on this topic, visit the original legal publication by the Brownstein Hyatt Farber Schreck on JD Supra.