Final Rule Issued Conforming Definition of “Waters of the United States” to Supreme Court’s Sackett Decision

panoramic view of wetlands, non specific location

The Environmental Protection Agency (EPA) and Department of the Army previously published a “Revised Definition of ‘Waters of the United States’ rule in the Federal Register in January of this year. The Supreme Court’s Sackett v. Environmental Protection Agency decision on May 25, 2023 is pivotal, in part because the Court’s interpretation of the Clean Water Act within its ruling invalidated parts of the EPA and the Army’s “Revised Definition” rule.

These two parties therefore amended the regulatory text of this January 2023 rule to conform it to the Court’s decision. The amended rule is now effective as of September 8, 2023 and published under the title “Revised Definition of ‘Waters of the United States’; Conforming,” in the Federal Register.              

The ongoing litigation concerning the January 2023 Rule has created a split where the January 2023 Rule remains valid and enforceable in 23 states, the District of Columbia, and the U.S. Territories, but is considered invalid and unenforceable in the remaining 27 states and for certain parties. As a result, the agencies are implementing the January 2023 Rule, as amended, where the Rule remains valid. Where the January 2023 Rule, as amended, is invalid, the agencies are interpreting the phrase “waters of the United States” consistent with the pre-2015 regulatory regime and the Supreme Court’s Sackett decision until further notice.

To see an updated map indicating which state follows which operative definition of “Waters of the United States”, click here. At Headway Environmental, we’re actively tracking further developments associated with the Sackett decision to better serve our clients.