WOTUS RULE TO BE UPDATED BY THE ENVIRONMENT PROTECTION AGENCY AND ARMY CORPS OF ENGINEERS BY SEPTEMBER 1, 2023

Instead of withdrawing the entire WOTUS rule, the Biden Administration is incorporating the recent Supreme Court decision into the existing Waters of the U.S. rulemaking document. In May, the Supreme Court ruled in Sackett v. U.S. to throw out the “significant nexus” test agencies relied upon to establish jurisdiction. In the ruling, the Supreme court specified that it wouldn’t defer to the rationale of the EPA that wetlands possess a “significant nexus” to navigable water” even if separated from jurisdictional waters by a dike or berm.

In North Dakota, agencies asked a federal judge to stay litigation proceedings leading to the Biden administration’s WOTUS rule being ordered in twenty-four states. Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, and Wyoming are included in U.S. District Judge Daniel Hovland’s injunction. A separate lawsuit resulted in an injunction affecting Texas and Idaho. The agencies stated that there was good cause for the stay in their filing on Monday and asserted that they plan to issue a final rule by September 1, 2023. This new rule will be an amendment to the previous rule effective March 20, 2023.