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June 28, 2023
At a June 22 House Transportation and Infrastructure Committee hearing, Assistant Secretary of the Army for Civil Works Michael Connor informed the committee that the Army Corps would be pausing all Clean Water Act jurisdictional determinations until a rulemaking revising the definition of “waters of the United States” is complete.
Subsequently, the U.S. Environmental Protection Agency and Army Corps of Engineers on June 26 announced their intent to issue a final rule by Sept. 1 to amend their 2023 final rule defining WOTUS that may be regulated under the Clean Water Act. The agencies are undergoing this rulemaking to align with the U.S. Supreme Court’s May 25 decision in Sackett v. Environmental Protection Agency.
The Sackett ruling rejected the “significant nexus” test that was a key provision of the 2023 rule and curtailed federal regulation to traditional navigable waters and other waters that are relatively permanent and connected to them.
ABC applauded the ruling, stating in part:
“By rejecting the ‘significant nexus’ test, the Supreme Court took a critical step toward eliminating the costly regulatory uncertainty that has plagued construction projects around the country for decades without providing meaningful environmental protections for America’s waterways.”
Beyond Assistant Secretary Connor’s statement, the agencies have failed to provide sufficient clarity on how they will implement Clean Water act regulations in the interim, stating that they “are interpreting ‘waters of the United States’ consistent with the Supreme Court’s decision in Sackett.” However, in a recent House Transportation & Infrastructure Committee hearing, Assistant Secretary of the Army for Civil Works Michael Connor informed the committee that the Army Corps would be pausing all Clean Water Act jurisdictional determinations until the rulemaking is complete.
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