The WOTUS Rollercoaster: Derailed or Just Down for Maintenance?
For Indiana Chamber members that have an interest in environmental affairs or are in a heavily regulated industry, you have long heard me complain about lack of regulatory certainty surrounding the Waters of the United States (WOTUS) rule. The changes in the definition and interpretations by the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers have truly been a regulatory roller coaster over the past couple of decades as it changes with each presidential administration. Throw in some court cases and this area has truly been a mess.
On December 30, 2022, the EPA and U.S. United States Army Corps of Engineers announced the final revised definition of the WOTUS rule, which will be effective 60 days after it’s published in the Federal Register. According to the agencies, the rule was developed with consideration of the relevant provisions of the Clean Water Act and the statute as a whole, relevant Supreme Court case law and the agencies’ technical expertise after more than 45 years of implementing the longstanding pre-2015 WOTUS framework. This rule also considers the best available science and extensive public comment to establish a definition of “waters of the United States” that supports public health, environmental protection, agricultural activity and economic growth.
So, it sounds like at last we have some regulatory certainty … but not so fast!
The pre-2015 framework was not perfect and many regulated businesses and those in agriculture had issues with that definition. In addition, I’ve heard from U.S. Sen. Mike Braun’s (R-Indiana) office that he will likely reintroduce S. 2168, The Define WOTUS Act, in the 118th Congress. He originally offered this bill in 2021, but it didn’t move. This issue has been such a political football that the best approach to finally achieve regulatory certainty may be for Congress to provide a clear definition in statute. Stay tuned!
Federal Trade Commission Proposes Rule to Ban Non-Compete Clauses
The Federal Trade Commission (FTC) announced its intent January 5 to ban the use of non-compete clauses in employment contracts by initiating a rulemaking. A non-compete clause is a contractual term between the employer and an employee that prohibits the employee, under certain circumstances, from going to work for a competing employer or starting a competing business, typically within a certain geographic area and period of time after the employment arrangement ends.
According to the FTC, about one in five American workers or approximately 30 million people are bound by a non-compete clause and are thus restricted from pursuing other employment opportunities. Non-compete agreements are nothing new. They’ve long been used in settings where there are trade secrets, client/customer lists and things where there is a need for protection.
They have also been frowned upon by the courts in certain professions (like doctors and lawyers) where there are needs for services. This proposal can cut both ways. If you’re an employer looking for employees, this proposal may not be so bad. If you’re an employer trying to retain key workers, this proposal could hurt you. There’s plenty of time to submit comments on this issue as the comment period closes March 10.
Read more details.
Resource: Greg Ellis at (317) 264-6881 or gellis@indianachamber.com
