EPA to Rewrite Rule to Define Waters of the U.S.

For the fourth time in ten years, the U.S. Environmental Protection Agency (EPA) will write a new rule for regulating Waters of the United States (WOTUS), one that EPA Administrator Lee Zeldin said will closely align with the Supreme Court’s 2023 decision Sackett vs. EPA. If so, it would alleviate regulatory risks for ICSC members. The Sackett decision limited EPA and the Army Corps of Engineers to regulating only wetlands and waterways with a continuous surface connection to a larger body of water.  EPA and the Corps recently announced a joint memorandum to field staff about implementation of a “continuous surface connection” in accordance with Sackett.

According to EPA, the agency will undertake a rulemaking process to revise the Biden-era 2023 WOTUS definition with a focus on “clarity, simplicity and improvements that will stand the test of time.” While this rulemaking process moves forward the agency will provide guidance to those states implementing the pre-2015 WOTUS definition to ensure consistency with the law of the land. A priority for the Trump administration, according to Administrator Zeldin, will be working cooperatively with state partners and local officials.

For many years, ICSC has supported reasonable limits to federal regulatory authority under the Clean Water Act (CWA) and clear, consistent rules for all property owners and jurisdictions. Aligning with the Supreme Court’s ruling in the Sackett case will bring an end to the confusion and uncertainty caused by the ill-defined Biden-era WOTUS rule.

For more information contact Abby Jagoda at ajagoda@icsc.com.