While there are many moving pieces in the works, the final rule clarified that effective immediately, USACE districts have resumed issuance of all AJDs nationwide under the applicable regulatory regime. The adjustments in regulations change the risk landscape for projects involving or impacting water bodies and wetlands, necessitating a careful reevaluation of project risk profiles. Projects are expecting delays because of backlogs, new implementation processes, and procedures. The good news is projects are being processed, and the new rule provides some clarity on future federal oversight of jurisdictional waters.
On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and United States Army Corps of Engineers (USACE), together “the agencies”, issued a final rule to amend the “Revised Definition of ‘Waters of the United States’” rule, published in the Federal Register on January 18, 2023. This amendment was necessary because of the decision by the U.S. Supreme Court in the case of Sackett v. EPA, which invalidated certain parts of the January 2023 WOTUS rule.
In response to the Supreme Court’s decision, in the case of Sackett v. EPA case, the agencies revised and clarified key aspects of the regulatory text to align with the Court’s interpretation of the Clean Water Act. This updated rule, titled “Revised Definition of ‘Waters of the United States’; Conforming,” was officially published in the Federal Register and went into effect on September 8, 2023. This regulatory change ensures consistency and compliance with the Court’s ruling, providing clarity for businesses and stakeholders involved with water-related regulations.
Image Credit: EPA
Of note, the January 2023 Rule, as amended by the conforming rule, is not currently operative in certain states and for certain parties due to litigation on the January 2023 Rule. The agencies are implementing the January 2023 Rule, as amended by the conforming rule, in 23 states, the District of Columbia, and the U.S. Territories (shaded green below). In the other 27 states and for certain parties (shaded purple below), the agencies are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime and the Supreme Court’s decision in Sackett until further notice.
Since our last update, the agencies’ amendments changed the parts of the 2023 definition of “waters of the United States” that are invalid under the Sackett decision. The most notable updates include:
These WOTUS changes significantly impact project risk profiles:
These adjustments in regulations have the potential to change the risk landscape for projects involving or impacting water bodies and wetlands, necessitating a careful reevaluation of project risk profiles.
Projects with a federal nexus, utilizing federal funding, federal mortgage insurance, federal permitting, or other federal decision-making, are still subject to Executive Order 11990: Protection of Wetlands. Under this EO each Federal agency must provide leadership and take action to minimize the destruction, loss or degradation of wetlands, and to preserve and enhance the natural and beneficial values of wetlands. Each agency, to the extent permitted by law, must avoid undertaking or providing assistance for new construction located in wetlands unless the head of the agency finds: there is no practical alternative to such construction; the proposed action includes all practical measures to minimize harm to wetlands that may result from such use. In making this finding the head of the agency may take into account economic, environmental, and other pertinent factors (Section 2(a)). Each agency must also provide the opportunity for early public review of any plans or proposals for new construction in wetlands (Section 2(b)).
The amendments to the January 2023 Rule do not change the existing exclusions from the definition of “waters of the United States”.
Now that the conforming rule has become effective, the nationwide pause on issuance of certain approved jurisdictional determinations (AJDs) is now lifted in entirety. Effective immediately, USACE districts have resumed issuance of all AJDs nationwide under the applicable regulatory regime. Additional regulatory guidance letters from USACE on how to apply the new rule have not been issued, and it remains uncertain if or when guidance will be issued from USACE.
Delays with processing requests with USACE are still expected as the USACE regional offices work through the backlog of requests submitted over the past several months and new requests submitted under the most recent rule. To clarify how recent changes impact decisions related to “waters of the United States.” Here’s what you need to know: