'Waters of the United States' Announcement Leaves Some Permit Holders In Limbo

The Biden administration announced that the federal government will, in a limited fashion, honor determinations of Waters of the United States (WOTUS) issued pursuant to section 404 of the federal Clean Water Act by the Trump administration despite a 2021 federal court ruling striking down the Trump WOTUS definition.

That's good news for some, but bad news for those who either obtained a WOTUS determination under the Trump-era definition without yet receiving their section 404 fill permits or received their permits after the court’s decision. Those permit holders or applicants may be sent back to the drawing board if their WOTUS determination is at odds with the WOTUS definition that existed before the Obama administration’s 2015 revisions rolled back by the Trump administration.

The Clean Water Act protects navigable waters, which it defines as the “Waters of the United States,” but it does not define “Waters of the United States.” Instead, the Act authorizes EPA and the U.S. Army Corps of Engineers to define the scope of federal jurisdiction over U.S. waterways through rulemaking. In 2015, the Obama administration used this authority to expand stream and wetlands protections, but in 2020 the Trump administration repealed that rule and replaced it with the narrower Navigable Waters Protection Rule (NWPR). In August 2021, the court in Pascua Yaqui Tribe v. U.S. Environmental Protection Agency struck down the Trump-era rule, and in November 2021, the Biden administration proposed a new rule that would return WOTUS to its pre-2015 definition, with amendments to reflect the agencies’ interpretation of statutory limits and Supreme Court case law.

The Army Corps identifies and locates jurisdictional waters through approved jurisdictional determinations (AJDs) issued to developers, landowners, and project proponents for a particular site. AJDs provide important information to developers and investors for planning purposes and for making an application for a permit from the Corps, including permits to discharge dredged or fill material in waters of the U.S. Typically, an AJD is valid for five years.

On January 5, the Corps announced it will not rely on AJDs issued under the NWPR in making a new permit decision. While the Corps will not revisit permits issued prior to the court’s ruling, permitting decisions made after the court’s August 30, 2021, ruling may be modified, suspended, or revoked if they relied on a NWPR AJD. All pending permit applications will be evaluated under the pre-2015 regime.

Ballard Spahr attorneys in the Environment and Natural Resources Practice Group provide regulatory, transactional, and litigation support to clients in every corner of the market—helping clear the way for projects, address environmental challenges, maintain regulatory compliance, and navigate enforcement issues.

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