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!
