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AdvocacyQuick Links: Phase 2 Rules - Water and Infrastructure Funding - WOTUS
Water and Infrastructure Funding Waters of the United States (WOTUS) - Events are listed below in chronological order below. WOTUS Rules Proposed Meanwhile, on October 3, 2022 the US Supreme Court heard oral arguments for an appeal of a case seeking to clarify its 2006 ruling in Rapanos. Sackett v. EPA asks SCOTUS when the CWA applies or does not apply to wetlands. A decision is expected in 2023. On January 18, 2023 EPA and the Army Corps of Engineers released a final Revised Definition of Waters of 'Waters of the United States'". and took effect on March 20, 2023. The Rule is generally based on the pre-2015 definitions and appears to be a middle ground between the 2015 “Clean Water Rule” and the 2020 “Navigable Waters Protection Rule.” While the Rule seems to have a narrower application than that of the 2015 regulations, it does contain language for “significant nexus” and “relatively permanent” tests, which will be subject to interpretation by regulators. Waterbodies that meet either test will be jurisdictional and subject to EPA and Corps permitting requirements. On March 19, 2023 ruling in the State of Texas, et al. vs. EPA, et al., a federal judge blocked implementation of the Rule in two states (Texas and Idaho). EPA subsequently announced that "the Rule is operative in all jurisdictions of the United States except Idaho and Texas." On April 12, 2023 the U.S. District Court for the Eastern District of North Dakota granted a request from 24 state officials to block the implementation of the rule from being implemented in those states. Of the 24 states the following Southeast states include Alabama, Georgia, Florida, Mississippi, South Carolina, and Tennessee. There are now a total 26 states where the rule has been enjoined and are subject to the pre-2015 regulatory regime. On May 10, 2023, a decision by the U.S. Court of Appeals for the 6th Circuit granted approval for Kentucky to block the implementation of the most recent WOTUS rule. With this ruling, Kentucky becomes the 27th state to block the implementation of the new WOTUS rule, going back to the pre-2015 version. On May 25, 2023, U.S. Supreme Court established a more stringent test to determine whether the Clean Water Act (CWA) applies to a wetland. The long-standing Sackett v. EPA case has been under review for over 10 years. The Supreme Court ruled that EPA had overstepped its authority in determining wetlands on the Sackett property and requiring remediation of construction impacts. The decision greatly limits EPA's authority on determining wetlands and requiring CWA permitting actions and could lead to significant changes to states implementation of wetlands permitting and 404 programs. Phase 2 Rules |