Agencies are working on the fourth and fifth versions in play since 2015
On Feb. 7, AGC responded to the U.S. Environmental Protection Agency and Department of the Army (Army Corps of Engineers) latest proposed definition of waters of the United States (WOTUS). This definition determines when an expensive federal permit is needed on projects that work in or near waters. AGC urged the agencies to abandon the proposal. For decades, the scope of federal regulatory authority under the Clean Water Act has been plagued by uncertainty and inconsistency. AGC seeks to protect waters and wetlands while preserving states’ traditional authority over land and water use. The agencies’ current proposal would expand the scope of federal control, permitting requirements, and enforcement authority under the Clean Water Act– all while eliminating much of the clarity and regulatory certainty that AGC members supported in the 2020 WOTUS rule. (See AGC comments on the current proposal as well as coalition comments with technical and economic analyses.)
In June 2021, the agencies stated that they will embark in a two-part process to 1) repeal the 2020 Navigable Waters Protection Rule and reinstate the status quo and then 2) create another definition. This proposal was intended to reinstate the status quo; however, the agencies have chosen instead to take this opportunity to make substantial policy changes and codify controversial interpretations of related Supreme Court decisions—making it a distinct new rule. The agencies propose several new definitions that will impact how they apply jurisdictional tests; posit that if waters are not significant in and of themselves, then they can consider them in aggregate; elevate biological impacts and consider amassing them in aggregate; and they reason that federal jurisdiction can extend beyond surface connections, suggesting that the lack of connection to a navigable water and its tributaries can itself be significant. The agencies also propose to expand the universe of waters that would need to be evaluated for jurisdiction. The current proposal does not draw clear lines, does not respect the ability and right of states to protect natural resources, and amounts to federal overreach. If finalized, it will inhibit economic growth and tie up resources to develop critical infrastructure.
A recent development in the courts further highlights the need to withdraw this controversial and expansive proposal. On January 24, 2022, the Supreme Court granted certiorari on the Sackett case (out of the Ninth Circuit) that will address the governing test of jurisdiction in that case. Whatever rule the agencies finalize will require revision following the Supreme Court’s review of that case. Meaning that project proponents could have to learn and comply with not just the fourth and fifth redo of WOTUS the agencies already have in the works, but a subsequent revision to follow shortly after.
For more information, contact Melinda Tomaino at melinda.tomaino@agc.org.