The U.S. Army Corps of Engineers amended the regulation to conform the definition of “waters of the United States” to conform to the Supreme Court’s ruling in Sackett v. Environmental Protection Agency. See the prior blog post about the Supreme Court’s ruling: Sackett v. Environmental Protection Agency – Construction and Utility Law | Atlanta | AHC Law
Federal Register :: Revised Definition of “Waters of the United States”; Conforming
This action amends Code of Federal Regulations (CFR) provisions promulgated in “Revised Definition of `Waters of the United States,’ ” 88 FR 3004 (January 18, 2023) (“2023 Rule”), to conform to the 2023 Supreme Court decision in Sackett v. EPA, 598 U.S._, 143 S. Ct. 1322 (2023) (“ Sackett”). The Administrative Procedure Act (APA) provides that, when an agency for good cause finds that public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. 5 U.S.C. 553(b)(B). The Environmental Protection Agency (EPA) and the Department of the Army (“the agencies”) have determined that there is good cause under APA section 553(b)(B) to issue this final rule without prior proposal and opportunity for comment because such notice and opportunity for comment is unnecessary. Certain provisions of the 2023 Rule are invalid under the Supreme Court’s interpretation of the Clean Water Act in Sackett. The effect of the Sackett decision was to render these provisions immediately inconsistent with the Supreme Court’s interpretation of the Clean Water Act. Consistent with the agencies’ previously stated intent regarding the severability of the 2023 Rule in the event that provisions of that rule were held invalid, see88 FR 3135, the agencies are conforming the 2023 Rule’s definition of the term “waters of the United States” to the Supreme Court’s decision. Specifically, the agencies are revising 40 CFR 120.2(a)(1)(iii), (a)(3) through (5), and (c)(2) and (6), and 33 CFR 328.3(a)(1)(iii), (a)(3) through (5), and (c)(2) and (6) to amend aspects of the definition as needed to conform to the Supreme Court’s interpretation of the Clean Water Act in Sackett. Because the sole purpose of this rule is to amend these specific provisions of the 2023 Rule to conform with Sackett, and such conforming amendments do not involve the exercise of the agencies’ discretion, providing advance public notice and seeking comment is unnecessary. A notice and comment process would neither provide new information to the public nor inform any agency decision-making regarding the aspects of the regulations defining “waters of the United States” that are invalid as inconsistent with the Clean Water Act under Sackett.
For similar reasons, there is good cause under the APA to make this rule immediately effective, 5 U.S.C. 553(d)(3), because this rule does not impose any burdens on the regulated community; rather, it merely conforms the 2023 Rule to the Supreme Court’s decision in Sackett by amending the provisions of the 2023 Rule that are invalid under the Supreme Court’s interpretation of the Clean Water Act.