The U.S. Environmental Protection Agency (U.S. EPA) released a proposal on Nov. 18, 2021, that would return to the 1980’s regulatory framework, with some changes, on Waters of the United States (WOTUS). As previously reported in September, a district court vacated the 2020 Navigable Waters Protection Rule (NWPR), which the Biden Administration has interpreted as a nationwide vacatur. Since then, the regulated community has been following the 1980’s regulatory regime and guidance on relevant U.S. Supreme Court rulings. Earlier this summer, the U.S. EPA announced its intention to remove and replace the Trump Administration’s NWPR. The first step is the proposal the U.S. EPA just released as a pre-publication version. Comments will be due within 60 days of its publication in the Federal Register. AGC will respond to the proposal.
Although the agency is proposing updates to the existing requirements; EPA will still continue to work on a new rule (Step Two). In preparation for that rule, the agency is planning ten regional roundtables. They are accepting applications for panels to participate until December 1, 2021. The applicants will need to identify each member of the panel who would like to participate. Each proposed slate of participants must represent perspectives of: agriculture; conservation groups; developers; drinking water/wastewater management; environmental organizations; environmental justice communities; industry; and other key interests in that region. EPA will then select the panels with which it will meet.
One final note in respect to the vacatur of the 2020 Rule: There was initial confusion on whether the U.S. Army Corps of Engineers would honor jurisdictional determinations made under the 2020 NWPR Rule. AGC met with the Corps in October and confirmed that approved JDs completed prior to the September 2nd remain valid (see September 16 notice) unless one of the criteria for revision is met under RGL 05-02. AGC recommends you contact the appropriate Corps District if you have a question about a particular JD for your project.
For more information, contact Melinda Tomaino at melinda.tomaino@agc.org.