U.S. Chamber Hosts WOTUS Roundtable One Year After Sackett Decision

On May 29, 2024, the U.S. Chamber of Commerce hosted a policy roundtable examining how the waters of the United States (WOTUS) final rule is being implemented by the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) one year after the U.S. Supreme Court’s Sackett v. EPA ruling on May 23, 2023.

Since then, there has been:

• Temporary suspension by the Corps of the Clean Water Act (CWA) 404 permitting program, which has resulted in a nationwide backlog of more than 4,000 projects seeking either CWA 404 wetlands permits or approved jurisdictional determinations (AJDs),
• Issuance of a joint direct-final-rule Conforming Rule by EPA and Corps that went into effect Sept. 8, 2023,
• Establishment by EPA and the Corps of an internal interagency review process of all pending AJDs impacting adjacent wetlands and isolated features under the Conforming Rule, and
• Submittal by NAHB, other industry groups, and several states of requests for information, under the Freedom Of Information Act (FOIA), concerning how EPA and Corps staff are implementing the Conforming Rule.

In addition, because of ongoing litigation brought against the final Conforming Rule by NAHB and other industries, more than half the states adhere to the pre-2015 regulatory regime, leaving just 23 states complying with the Conforming Rule.

The May 29 roundtable highlighted the challenges and practicalities of implementation, including how the Corps is processing AJDs. At least one Corps district — Chicago District — no longer offers standalone AJDs, resulting in NAHB members seeking jurisdictional determinations to first submit a completed CWA 404 wetland permit application to the Corps. Speakers at the roundtable explored what is needed for more timely and predictable permitting decisions, and identified what is raising the costs, impacts and unintended consequences on stakeholders for compliance.

Stacey Jensen, division director for wetlands protection, and Russ Kaiser, acting director for the Office of Oceans, Wetlands, and Communities Division in the EPA Office of Water, participated in the event. Kaiser and Jensen highlighted the EPA’s role in implementing WOTUS to deliver essential protections safeguarding the nation’s waters from pollution and degradation. EPA staff emphasized that the regulated public should be aware that the field memos implementing the WOTUS definition are applicable nationwide. Builders should be aware of what these memos say because Corps field staff will use them when their project is similar to the one addressed in the memo.

Trade associations representing state governments also participated in this event. They primarily emphasized the need for bright-line tests to make their permitting programs effective. Several states with wetlands permitting programs rely on AJDs provided by the Corps to determine what wetlands are federally regulated to determine and what type of wetlands are protected under state wetlands programs. The EPA and Corps have failed to give the states the clarity and certainty they need to implement their programs. It’s clear from the state and local governments that they need to know where the federal authority ends and their authority begins.

Vince Messerly, vice chairman of the NAHB Environmental Issues Committee, spoke during the business panel with representatives from the American Road & Transportation Builders Association (ARTBA) and the National Sand, Stone, and Gravel Association (NSSGA). Unfortunately, the EPA staff left the event before the business panel could present WOTUS's impact on the national economy and the respective industries represented.

As part of the discussion, Messerly emphasized that the agencies must be more transparent about which types of non-adjacent wetlands and ephemeral features are no longer regulated under the CWA because of Sackett. He also emphasized the necessity of standalone AJDs to developers and home builders to avoid impacting CWA jurisdiction features before seeking CWA 404 wetlands permits and thereby avoiding potential wetland mitigation costs.

He further emphasized the need for clear definitions from the agencies to comply with the Sackett decision. Although EPA staff had left, Messerly encouraged the agencies to meet with home builders and environmental consultants to “help us help you.”