“Regulatory Update – Waters of the United States and Approved Jurisdictional Determinations”

Following the Supreme Court’s ruling in the Sackett case, the US Army Corps of Engineers suspended issuance of Approved Jurisdictional Determinations (AJDs). AJDs are the vehicle by which the Corps formally identifies what wetlands, streams, and other waterbodies are subject to regulation under the federal Clean Water Act. Without an AJD, a project can not realize the reduction in the reach of federal regulation post-Sackett.

During a budget hearing held yesterday in the U.S House of Representatives Transportation and Infrastructure Committee’s Subcommittee on Water Resources and Environment, Assistant Secretary of the Army Michael Connor stated that the Corps and USEPA intend to promulgate a new, final Waters of the US rule “expeditiously” using the Administrative Procedure Act’s direct final rule process. This direct final rule process would be completed in-lieu of creating temporary guidance to allow AJDs to be issued in the near term. Connor stated, “I don’t expect that we’ll be back in the approved jurisdictional determination business until we get this final rule in place.”

Importantly, the Administrative Procedure Act’s direct final rule process is intended for routine or non-controversial matters; it does not allow for the agency to receive substantive adverse comments. Due to the contentious nature of WOTUS, it is feasible that a direct final rule approach could result in additional delays in rulemaking (and thus issuance of AJDs in accordance with the principles of Sackett) should the agencies have to withdraw the direct final rule and proceed through the full rulemaking process.

Please contact Vince Messerly or Greg Snowden with questions on how these regulatory changes may affect your project.”