The Biden-Harris Administration has been implementing the Waters of the United States conforming rule for one year. Implementation has been a challenge for regulators and industry alike. Meanwhile, AGC’s legal challenge to the 2023 rule continues, and the rule remains on hold in 27 states. The most recent legal filing applies recent U.S. Supreme Court rulings on Chevron deference to the case.
Implementation of the new rule has been confusing. Several members reporting that U.S. Army Corps of Engineers field staff are hesitant to provide approved jurisdictional determinations. Furthermore, some approvals have been elevated to Corps and U.S. Environmental Protection Agency to make case-by-case evaluations. The agencies have been releasing field memos on their determinations in some of the scenarios they are reviewing. The regulated community is left trying to figure out how those case-by-case memos relate to their projects.
In August 2024, AGC and its industry coalition partners filed supplemental briefs to introduce the U.S. Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo ending Chevron deference into our lawsuits (TX and ND district courts) challenging the Biden administration’s “Waters of the United States” (WOTUS) rule, arguing that the measure is unlawful and should not be granted “deference” or “respect.” The supplemental brief also took aim at the agency field memos that conflict with the U.S. Supreme Court’s decision in Sackett that hinge on “indistinguishability” or “continuous surface connection” requirements to determine jurisdiction.
For more information, contact Melinda Tomaino at melinda.tomaino@agc.org.