2020 Environmental Real Estate Issues

In June, the Biden administration announced it will revise the definition of “waters of the United States” (WOTUS) (See  Administration Announces Intent to Revise Definition of WOTUS).  In July, the administration announced the Army and EPA will issue a “foundational rule” that will withdraw the WOTUS definition in the Navigable Waters Protection Rule issued during the Trump administration and “restore the regulations defining WOTUS that were in place for decades until 2015, with updates to be consistent with relevant Supreme Court decisions.”  (See Biden Administration Announces Plan for Interim Return to Pre-2015 Definition of WOTUS)

Does WOTUS Include Ephemeral Streams?
The administration seems to want to expand WOTUS to include ephemeral streams, which have flow for just a short time.  In 2006, a fractured United States Supreme Court issued the Rapanos decision, where three other justices agreed with now deceased Justice Scalia, who categorically stated “waters of the United States…does not include channels through which water flows intermittently or ephemerally…”  However, neither this nor any other opinion in Rapanos had a majority.

Scalia’s Ongoing Influence with the Court
The current Supreme Court is not so fractured, presenting a dilemma for the administration.  The three judges that agreed with Justice Scalia are still on the Court, along with the three Trump appointees.  Given the categorical statement by Justice Scalia, and with six justices likely to agree with him, no expansion of WOTUS to ephemeral streams will withstand Supreme Court review.  If the Biden administration brings some ephemeral streams into WOTUS, the viability of any rule will be no longer than the time it takes for the Supreme Court to issue a decision in a case challenging it.