Regulatory uncertainty and costly delays for electric cooperatives are still likely under the revised final “waters of the United States" rule, which was modified after a recent U.S. Supreme Court decision that narrowed the Clean Water Act's scope.

“While surgical revisions were made in response to the justices' opinion in Sackett v. EPA, the amended 2023 WOTUS rule is still not consistent with the limits of the Clean Water Act and Supreme Court precedent," said Viktoria Seale, NRECA regulatory affairs director.

“The patchwork of WOTUS regulation and uncertainty will continue under the revised rule."

The high court had rejected an expansive jurisdictional test and other elements of the Environmental Protection Agency and the Army Corps of Engineers' WOTUS definition that placed nearly all water features, permanent or not, under federal jurisdiction.

The new rule takes effect upon publication in the Federal Register. Key changes made include:

  • Eliminating the “significant nexus" test to identify tributaries and other waters for oversight.
  • Removing “interstate wetlands" from the interstate waters provision.
  • Removing streams and wetlands from the “additional waters" category.
  • Revising the definition of “adjacent" to mean “having a continuous surface connection."
  • Deleting the definition of “significantly affect."

“While the agencies made some necessary changes to eliminate invalid elements of the WOTUS definition, they failed to address other problematic aspects of the 2023 rule and left a lot of gray area that allows them flexibility to expand federal jurisdiction," Seale said.

NRECA joined a multi-industry coalition in urging the Biden administration to follow the Supreme Court's decision narrowing federal authority in its WOTUS rule. Other litigation against the regulation is still working its way through courts across the country.

“NRECA will closely track and update members on the agencies' implementation of the WOTUS definition and the ongoing litigation over the 2023 WOTUS rule," Seale said.

EPA and the Corps will host a public webinar on the new WOTUS rule Sept. 12.