2020 Environmental Real Estate Issues

A news release issued July 30, 2021, “EPA and Army Announce Next Steps for Crafting Enduring Definition of Waters of the United States,” gives the Biden administration’s plan for changing the definition of “waters of the United States” (WOTUS).

Pre-2015 Definition
Initially, EPA and the Army will issue a “foundational rule” that will withdraw the WOTUS definition in the Navigable Waters Protection Rule (NWPR) 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.”  A “second rulemaking process” will then “refine this regulatory foundation and establish an updated and durable definition” of WOTUS.  In planning to return to the pre-2015 definition in the foundational rule, the Biden administration is rejecting the definition issued by the Obama administration in 2015 as well as that in the NWPR.

2008 Guidance During the Interim
Important pre-2015 guidance discussing “relevant Supreme Court decisions” is the 2008 document “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States.”  This document specifically identifies Justice Kennedy’s concurring opinion as contributing to the “controlling legal principles” that can guide ongoing jurisdictional determinations.  Between the initial rulemaking and the second rulemaking, this guidance may be important.

Despite the Biden administration’s announcement, I see little chance the current Supreme Court will view favorably the Kennedy concurrence or the 2008 guidance, more on that in a later alert.

Public Participation
Both steps require public participation; the news release contains a link for information on how to submit comments or register for public meetings.
To see the news release https://www.epa.gov/newsreleases/epa-and-army-announce-next-steps-crafting-enduring-definition-waters-united-states

To see the 2008 guidance https://www.epa.gov/sites/default/files/2016-02/documents/cwa_jurisdiction_following_rapanos120208.pdf