Following the ruling by the Supreme Court in Sackett v EPA, the Environmental Protection Agency (EPA) issued an amended Waters of the United States (WOTUS) Rule on September 8th. The most important change related to the “significant nexus” test to conform to the SCOTUS decision.
A total of 26 states supported by agricultural associations have now initiated lawsuits in Texas and North Dakota claiming that the amended Rule includes waters with “no reasonable connection to navigable waters” and is arbitrary and capricious since it embraces vague standards with little justification and minimal consideration of cost”.
The amended Final Rule was issued without providing an opportunity for public comment. The states also maintain that the amended rule violates the Clean Water Act and the Constitution. The states argue that the modified Final Rule should be vacated and referred to the EPA for modification to conform to the SCOTUS decision. It is evident that with litigation the interpretation of WOTUS and a new Rule will extend well into the next Administration.