At the invitation of the U.S. Environmental Protection (EPA), AGC attended a March 12th briefing to hear EPA Administrator Lee Zeldin announce the administration’s plans to further clarify the scope of Clean Water Act (CWA) jurisdiction over federal waters, including new guidance and opportunity for public feedback. The definition of WOTUS is central for determining when expensive and time-consuming federal permits are needed for work in or around those waters and wetlands. Furthermore, CWA violations can include steep fines and criminal penalties, which makes AGC’s advocacy for regulatory clarity so important.
EPA’s press release states that “it is time for EPA to finally address this issue once and for all in a way that provides American farmers, landowners, businesses, and states with clear and simplified direction.” AGC applauds the administration for taking these steps to provide greater regulatory certainty and ensure that federal permitting requirements are predictable, transparent, and consistent with Supreme Court precedent.
As announced, EPA’s first step is a new joint memo with the U.S. Army Corps of Engineers that provides interim implementation guidance, effective immediately. The memo highlights key portions of relevant U.S. Supreme Court rulings: Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023) and Rapanos v. United States, 547 U.S. 715 (2006). AGC previously submitted an amicus brief to the U.S. Supreme Court in support of the Sacketts, urging the Court to provide long-overdue clarity on federal jurisdiction under the CWA. The Supreme Court’s decision significantly reshaped the definition of WOTUS, but AGC remains actively engaged in litigation challenging the Biden administration’s 2023 rule. AGC raised concern with WOTUS in a letter to President Trump identifying priorities for the construction industry. In recent testimony before the U.S. Senate Environment and Public Works Committee, AGC further highlighted the continued uncertainty surrounding WOTUS and emphasized the need for a durable, commonsense definition that eliminates regulatory confusion for the construction industry.
EPA also will open a new docket, “WOTUS Notice: The Final Response to SCOTUS,” to gather feedback on conforming with the U.S. Supreme Court and implementation. The agencies have not ruled out making future regulatory changes or issuing additional guidance.AGC will respond to the agencies under the new docket. If you have feedback on WOTUS implementation, please reach out to AGC’s Melinda Tomaino at Melinda.tomaino@agc.org by Noon, Friday, March 28, 2025.