By: Andrew Der, CEP
Background
In early 2023, we released a two-part blog series that covered some historical background on the Clean Water Act (CWA) and “waters of the United States” (WOTUS), providing historical context on WOTUS rule-making through past administration, and detailing potential new developments regarding WOTUS definitions and regulation – including the SCOTUS Sackett v. EPA ruling of May 2023. In response, on August 29, 2023, the agencies amended the final “Revised Definition of ‘Waters of the United States’” rule with a final version to render the definition of WOTUS congruent with the ruling. The primary regulatory agencies, Environmental Protection Agency (EPA) and Army Corps of Engineers (COE), released a coordination memo guidance document describing how they will coordinate Section 404 permitting and Jurisdictional Determinations (JDs) regarding WOTUS.
Ongoing WOTUS Coordination Efforts
As of June 25, 2024, the agencies have jointly issued a nine-month extension for their regulatory coordination memorandum, which was set to expire just two days later – in effect extending how Section 404 permitting will continue. In lieu of more formal guidance, the agencies have drafted numerous field memoranda for clarification, and plan to continue issuing additional field memoranda as needed throughout the nine-month extension period. They are expected to provide four memos guiding field staff on how to interpret “continuous surface connection” in tenuous or unclear hydrological conditions soon. Three field memos have already been released by the agencies aiming to direct field staff on how they should be interpreting key issues in those states (due to past U.S. District Court rulings) where the 2023 Conforming Rule is being enforced.
For a more in-depth picture of how we got here, check out our previous blog series on WOTUS below!
Rules, Rules, and More Rules – Part 1: https://www.straughanenvironmental.com/news-insights/rules-rules-and-more-rules-part-1/
Rules, Rules, and More Rules – Part 2: https://www.straughanenvironmental.com/news-insights/rules-rules-and-more-rules-part-2/