EPA to rewrite WOTUS rule by Sept. 1

After losing the landmark case of Sackett vs EPA in the U.S. Supreme Court, the Environmental Protection Agency is going back to the drawing board on its massive Waters of the United States (WOTUS) rule.

The agency said it will rewrite the 435-page rule by Sept. 1, 2023 — giving them just 66 days to get it done.

EPA Agricultural Advisor Rod Snyder told members of the National Council of Farmers Cooperatives that the agency plans to “surgically update key aspects of the regulatory text to conform to the court's ruling,” according to a report from AgriPulse. The report also states that Snyder said the EPA plans to tweak the rule’s language that is in effect in states where it has not blocked it from being implemented. 

“EPA has set a very ambitious schedule to get this new rule out,” said Laura Campbell, MFB senior conservation and regulatory relations specialist. 

“We’ll be watching very closely to see if EPA is adhering to spirit or the language of the Sackett decision when the new rule is released.”

EPA said it will interpret the phrase “Waters of the United States” consistent with the Supreme Court’s decision in the Sackett case, which involved an Idaho couple who sought to build a home on a three-quarter-acre residential lot purchased in 2004. EPA argued that the Sacketts' lot contained “navigable waters” subject to federal control, but the Supreme Court disagreed 9-0 in favor of farmers and property owners.

The ruling raised major questions about the future of the WOTUS rule, which removed longstanding exclusions for small and isolated water features on farms.

“By the EPA’s own admission, nearly all waters and wetlands are potentially susceptible to regulation under this test, putting a staggering array of landowners at risk of criminal prosecution for such mundane activities as moving dirt,” the Supreme Court wrote, calling the reach of the Clean Water Act (CWA) “notoriously unclear.”

While there are pending lawsuits against the EPA over the WOTUS rule, the agency has requested those cases be put on hold while they work on the rewrite. The Sackett decision does not change wetland compliance requirements for USDA programs.

“Michigan is one of three states that have delegated authority under the Clean Water Act, so our rules don't change during this process,” Campbell noted.

“But for the rest of the country there's a lot of uncertainty because if EPA is rewriting the rule, anybody that’s got an open request for determination or permit application out there is in limbo.”