Next Steps on WOTUS

The EPA and Army Corps plan to “expedite” a new waters of the United States (WOTUS) rule, while pumping the breaks on at least some requests for jurisdictional determinations and new 404 permits.

In testimony on June 22, the U.S. Army Corps of Engineers announced plans to revise “expeditiously” the 2023 waters of the United States (WOTUS) Rule – hinting that the administration will skip the proposed rule stage and instead promulgate a final rule. It is unclear whether the agencies will provide for public comment. The Corps also publicly acknowledged the hold on approved jurisdictional determinations (AJD) that members and project owners have reported nationwide. The agencies intend to hold back on issuing AJDs until after the final rule is released—the full extent of the hold is not clear. (The testimony is at the one-hour mark here.)

The U.S. Supreme Court’s May 25, 2023, decision in the case of Sackett v. Environmental Protection Agency necessitated another look at the Biden Administration’s 2023 rule defining waters of the United States—a key factor in permitting projects. Federal agencies must reinterpret WOTUS in light of the decision. The flawed 2023 rule is on hold in 27 states thanks to AGC-backed legal actions, which are ongoing. It is unlikely that a rushed amendment to the rule will resolve its legal shortcomings, which are not limited to the “significant nexus” principle that the Supreme Court rejected.

For more information, contact Melinda Tomaino at [email protected].

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