Agencies Announce Plan to Re-write Definition of Waters of the United States

The U.S. EPA and U.S. Army Corps of Engineers Announce Schedule for Public Meeting and Pre-Proposal Recommendations for Upcoming Waters of the United States Rulemaking.

The July 30, 2021, Notice of Public Meetings Regarding “Waters of the United States”; Establishment of a Public Docket; Request for Recommendations identifies the Agencies’ intent to restore the regulatory approach for “Waters of the United States” developed in 2008 following the U.S. Supreme Court cases Rapanos v. United States and Carabell v. United States. Additionally, the Notice identifies a second rulemaking process to build on that regulatory approach.

The Notice identifies five (5) virtual public meetings to be held on August 18, 23, 25, 26, and 31. Registration for these meetings is available at Public Outreach and Stakeholder Engagement Activities | US EPA. Additionally, the Agencies are accepting written recommendations that can be submitted to Docket ID No. EPA-HQ-OW-2021-0328 through https://www.regulations.gov.

SWCA will continue to monitor this regulatory development and provide updates when they become available. Based on SWCA’s previous experience, the Agencies are expected to honor Approved Jurisdictional Determinations (AJDs) until their date of expiration, regardless of the regulations in place at the time of issuance. Furthermore, it appears likely that the Navigable Waters Protection Rule will continue to be used for AJDs for the remainder of 2021, providing a window for projects seeking determinations under the existing regulations for at least the next 4 to 6 months.

Please reach out to your primary contact at SWCA if you have any questions or would like to learn about opportunities for participating in the stakeholder engagement process.