Last week, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers announced the issuance of a proposed revised Waters of the United States (WOTUS) regulation. The proposed regulation is intended to adhere more closely to the Supreme Court’s decision in Sackett v. Environmental Protection Agency which restricted the scope of the federal government’s authority to define what is a wetland for purposes of asserting federal jurisdiction.

The WOTUS regulation and its inconsistent interpretation by different EPA and Army Corps offices tasked with reviewing permitting applications for development has been a prolonged source of public frustration. NAIOP has long supported a WOTUS definition that would provide regulatory clarity and predictability, and consequently the certainty needed by the development community to make informed business and investment decisions. According to EPA, the proposed revised regulation is intended to be durable, ending the varying interpretations that have been promulgated since passage of the Clean Water Act.