Following the nationwide vacatur of the 2020 definition of waters of the United States (WOTUS) under the Clean Water Act, the U.S. Army Corps of Engineers (Corps) reverted to using the 1980s regulatory regime with prior guidance when making decisions on federal jurisdiction over waters and wetlands. The Biden Administration has also moved forward with its two-step process to repeal and replace the 2020 rule. On Dec. 7, they published a proposal to reinstate the 1980s regulatory regime with changes that would codify the Administration’s interpretations of the relevant Supreme Court rulings. AGC is preparing comments in advance of the Feb. 7 deadline.
The U.S. Environmental Protection Agency is taking the lead in the rulemaking process with the Corps. And although the agencies assert that the proposal would have zero impact, AGC’s reading of the proposal finds cause for concern. A detailed summary of the proposal provides insight onto areas that have changed from the 2020 Navigable Waters Protection Rule, as well as, where it diverges from the 1980s regulatory regime and applicable guidance. The agencies also present several interpretations that need to be evaluated, reference current developments in science, and released a new economic analysis. The agencies are also seeking input on more than 100 questions. Collectively, this presents an image of a rulemaking that is complex with a significant amount of information to review and respond to within the comment period. If you have thoughts or comments on the proposal, please share them with Melinda Tomaino (firstname.lastname@example.org) by January 14.
For the second part of the process, the Unified Agenda (regulatory outlook for the federal government) points to the imminent release of another proposal coming in 2022 that would further revise the definition.
For more information, contact Melinda Tomaino at email@example.com.