In a January 5, 2022, press release, the U.S. Army Corps of Engineers announced it will not make permitting decisions based on certain Approved Jurisdictional Determinations (AJDs) rendered under the 2020 Navigable Waters Protection Rule or NWPR, which was the Trump Administration’s regulatory definition of Waters of the United States (often referred to as “WOTUS”). AJDs provide the Corps’ project-based regulatory determinations whether certain development and construction projects impact WOTUS and, therefore, require Clean Water Act 404 permits to authorize such impacts. Because the NWPR was thought to reduce the number and extent of water bodies subject to Clean Water Act regulation and the durability of the NWPR was uncertain, the conventional wisdom was to request AJDs while the NWPR was in effect, allowing developers to lock in a more favorable AJD and thereby reduce potential constraints and mitigation work required for development activities impacting WOTUS. However, as a result of the Corps’ change of direction, general contractors, property owners, developers, and related construction companies that followed the conventional wisdom will need to pay careful attention for any projects for which a 404 permit has not been issued.
Companies in a wide variety of industries, including agriculture, manufacturing, mining, power generation, and utilities, that manage wastewater effluent in surface impoundments, lagoons, land application, septic systems, underground injection, or similar methods will want to evaluate the recent court decision in the County of Maui case on remand from the Supreme Court and how it could significantly impact wastewater permitting in the future. The case is the first federal district court to work through the “functional equivalent” analysis for federal jurisdiction over groundwater set forth by the U.S. Supreme Court in its April 2020 ruling involving the very same parties and operative facts.