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Regulatory Flip-Flop Highlights Challenges for Manufacturers

The Army Corps of Engineers’ uncertain assessment of a proposed titanium mine in Georgia’s Okefenokee Swamp is becoming a developmental battleground, according to Bloomberg Government (subscription).
The project: Developers are seeking clarity about the Corps’ jurisdictional determinations in moving forward with the Okefenokee project. Many Corps jurisdictional determinations are now in limbo after the Trump-era Navigable Waters Protection Rule is being rolled back under the Biden administration.

The background: The Army Corps is typically the authority for granting Clean Water Act permits for land development projects; essentially the Corps typically determines protections for wetlands under current law, and its regulations say that determinations are good for at least five years and are based on whatever definition of the “Waters of the United States,” or WOTUS, was in effect at the time that the project was assessed.

The big deal: Last week, the Corps said that developers “can no longer rely” on previous official determinations that were based on regulations that are now being reviewed.

Why it matters: With shifting rules and definitions, a company that is affected by a rule change could be penalized or incur unforeseen costs in the permit process if the Corps revisits its determinations now.

What we’re saying: “Regulatory uncertainty might be the biggest unacknowledged supply-chain bottleneck and silent killer of projects. Death by delay is real,” says NAM Vice President of Energy and Resources Policy Rachel Jones. “Every day I hear from manufacturers that just want to know what the rules are so that they can follow them. But the political pendulum is creating unimaginable headaches for manufacturers looking to onshore or expand domestic production. We’ve been asking for clear rules to protect clean water for decades now; the U.S. can’t afford to keep putting projects on ice or investment will be forced to go elsewhere.”

In related news: The Supreme Court will consider dialing back the way the federal government regulates private property under the Clean Water Act, according to The Seattle Times.

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