NWC News Alert (Jan. 20, 2023)

USACE OPENS PUBLIC COMMENT PERIOD FOR WRDA 2022 IMPLEMENTATION 

On Jan. 20, the U.S. Army Corps of Engineers opened a 60-day comment period for the Water Resources Development Act of 2022 (P.L. 117-81/WRDA 2022). During this comment period, they want commenters to note which provisions need guidance, and what the guidance should say, as well as prioritize which guidance should be released sooner.

Furthermore, as part of this outreach effort, USACE will hold three virtual stakeholder sessions in February and March to gather input. These sessions will be held on February 15, 2023, from 2pm—4pm ET; Feb. 22, 2023, from 2—4pm ET and March 1, 2023, from 2—4pm ET. Virtual meetings will be held here during the designated times.

WRDA is a biennial package that authorizes USACE water resource studies and projects, as well as provides policy changes to the Corps civil works program. WRDA is part one of a two-step process to get studies and projects funded. Once authorized in WRDA, the studies and projects must be funded through the annual appropriations process. WRDA 2022 was signed into law by President Biden late last year.

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REVISED WOTUS RULE FINALIZED/LAWSUITS FILED

On Jan. 18, 2023, the Final Revised Definition of “Waters of the United States” was published in the Federal Register. This rule will become effective on March 20, 2023. As expected, the rule was immediately challenged in the courts by states and industry in multiple federal district courts. Concurrently, the U.S. Supreme Court is expected to rule this spring on a related case, Sackett v. EPA, which may impact the final rule.

The term WOTUS has been around since the 1899 Rivers and Harbors Act but in 1972 was added to the Clean Water Act to differentiate between which waters are regulated at the state versus federal level. In recent years, due to several controversial Supreme Court decisions, the WOTUS definition has become increasingly murky, leading to confusion in the field about what is and is not a WOTUS. The past several administrations have attempted to redefine WOTUS but have run into legal challenges. During the Trump administration, they rewrote the WOTUS rule finalized under the Obama administration, however, that rule ran into legal challenges. In August 2021, Trump’s Navigable Waters Protection Rule was struck down by a federal district court in Arizona. In response, the EPA and USACE reverted to their previous 1986 definition (with amendments) as they worked to rewrite this rule, which will replace the 1986 definition. NWC submitted substantial comments on the proposal to replace the 1986 regulations (Feb. 2022).

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