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The Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) have issued a nine-month extension for their coordination memoranda on the “waters of the United States” for the 2023 Conforming Rule and the pre-2015 regulatory regime. The memo was set to expire June 27.

The memo establishes a process by which the Corps and EPA will coordinate ton Clean Water Act jurisdictional matters to ensure accurate and consistent implementation of the regimes where each regulatory regime is operative.

According to the NAHB, builders should be aware of the memoirs because “Corps field staff will use them when [a builder’s] project is similar to the one addressed in the memo. The NAHB has a resource page on WOTUS, with analysis of the memoranda as well as additional information on coverage areas, guiding practices, and regulatory updates on WOTUS.

As part of the extension process, both the EPA and Corps have drafted a number of field memoranda to address key issues in implementing the conforming WOTUS rule and expect to continue issued additional memos as needed during the ensuing nine month period. The agencies are expected to release four memos providing insight to field staff on how to interpret ‘continuous surface connection’ in the coming weeks.

Confusion and uncertainty surrounding WOTUS dates back to the Sackett v. EPA supreme court decision in May 2023, which determined certain parts of the old WOTUS rule invalid. The EPA and Corps issued an amended rule that the NAHB felt was unclear, stating the lack of clarity of certain definitions could result in “continued federal overreach, bureaucratic delays during the wetlands permitting process, and continued regulatory confusion” for builders. In particular, the association felt there was a particular murkiness on what constitutes “relatively permanent” water bodies or “continuous surface connections.”

As it stands, the EPA and Corps have issued three field memos on how to interpret key issues where the 2023 WOTUS Conforming Rule is enforced. The agencies have issued an additional three field memos on how to interpret similar issues where the pre-2015 regulatory regime is enforced. More than half of the states in the U.S. adhere to the pre-2015 regulatory regime following a court decisions in 2023 blocking the 2023 WOTUS rule in Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.

Conversely, the remaining U.S. states have implemented the final 2023 Conforming Rule, which went into effect on Sept. 8, 2023.

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