Biden Administration to Redefine Geographical Scope of Clean Water Act

Bilzin Sumberg Publication
Client Alert
June 15, 2021
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.
Related Practices
Howard E. Nelson
Partner, Head of Environmental Practice
Liana M. Kozlowski
Client Alert 12/21/2020
The EPA has approved the State of Florida’s request to administer federal wetlands permitting under the Clean Water Act ("CWA") Section 404 Program within the state, making it only the third state in the country to receive such authority. The approval, which should take effect tomorrow, will t...
Speaking Engagement October 4, 2023
Joy Spillis Lundeen presents the Florida Construction State of the Market at Bilzin Sumberg's Florida Condo Redevelopment Unleashed.
Client Alert June 20, 2023
On June 12, 2023, Florida Governor Ron DeSantis signed into law House Bill 331, which significantly modifies Florida’s Construction Lien Law (Chapter 713, Florida Statutes). The amendments, which take effect on October 1, 2023, have important implications for owners and contractors related to ...