Army Corps Official Signals Next Steps in WOTUS Rulemaking

This blog post has been updated.

During a June 22 congressional hearing on the U.S. Army Corps of Engineers (Corps) FY 2024 budget request, it was revealed that the U.S. Environmental Protection Agency (EPA) and Corps would use an administrative rulemaking process called “direct final rule” to expedite a new "waters of the U.S." (WOTUS) rule following the Supreme Court’s Sackett ruling.

Testifying before the congressional panel, Michael Connor, Assistant Secretary U.S. Army Civil Works, revealed the Corps and EPA plan to issue a new regulatory definition of WOTUS under the Clean Water Act (CWA) that will become effective soon after issuance, provided the agencies do not receive adverse comment. If the agencies receive adverse public comments, then they would proceed with the traditional public notice-and-comment rulemaking process for the revised WOTUS regulatory definition.

While Connor did not specify the contents of this direct final WOTUS rule, it was understood that EPA and the Corps would issue a regulatory definition of WOTUS that the agencies believe is consistent with the Sackett ruling.

Furthermore, as stated by Connor, the Corps has stopped processing requests for approved jurisdictional determinations (AJDs) and CWA 404 permits based on an approved jurisdictional determination. Notably, under the approach announced yesterday, neither the Corps nor EPA would issue any interim regulatory guidance directing the Corps districts to resume processing approved AJDs or issuing new CWA 404 permits until this rulemaking process is completed.

The Corp and EPA are developing a rule to amend the final revised definition of WOTUS and intend to issue a final rule by Sept. 1, 2023.

View NAHB’s WOTUS webpage where additional information will be posted on the timing and content of this upcoming rulemaking.