Last week the Biden administration announced plans to reverse the Navigable Waters Protection Rule, implemented by the prior administration, and initiate a new rulemaking process that will likely expand the number of waterways currently subject to federal regulation under the Clean Water Act (CWA). The Environmental Protection Agency and the Army Corps of Engineers intend to revise the administrative rule defining "waters of the United States" (WOTUS) – the threshold term that establishes the geographical scope of federal jurisdiction under the CWA.
Changes to the WOTUS definition directly affect whether a land development project is subject to federal agency review and requires Section 404 permitting. Through the 2020 Navigable Waters Protection Rule, the prior administration excluded several bodies of water from federal regulatory jurisdiction by specifically enumerating 12 categories of waters not deemed to be "waters of the United States". The likely result of any revisions to the Navigable Waters Protection Rule would broaden the scope of water bodies subject to federal regulation. Industries such as construction, agriculture, and mining, whose operations typically impact WOTUS (e.g., discharges, dredging, filling), will be affected by revisions to the definition of WOTUS. However, companies should be prepared for a lengthy rulemaking process and the possibility of subsequent legal challenges.
Although it is not clear when the new rulemaking process will commence, the Department of Justice has already filed a motion in the U.S. District Court of Massachusetts seeking to remand the Navigable Waters Protection Rule so that the agencies can initiate the process. The motion makes clear that the 2020 rule will remain in effect until the revised rule has been finalized.