Biden Administration Proposes to Redefine “Waters of the United States”

Members of the regulated community who oppose this expansion of federal jurisdiction under the Clean Water Act will have 60 days to submit written comments.

The Clean Water Act, 33 U.S.C. § 1251 et seq. is the primary federal statute regulating water quality in the United States.  It uses the phrase “waters of the United States”—often termed “WOTUS”—as a limit on federal jurisdiction.  Only when pollutants or dredge material go into WOTUS can a federal agency require a permit.  Because of the term’s importance to federal jurisdiction, it has been the subject of numerous changes and lawsuits in recent years.  In an article we recently shared , we predicted that the Biden administration would soon propose a new definition.

On November 18, 2021, the Biden administration did just that.  The proposed rule (“Proposed Rule”) is available here.  In short, it would significantly expand federal jurisdiction over waterbodies throughout the country.  For example, whereas existing regulations would not treat isolated ponds or puddles as WOTUS, the Proposed Rule would, provided that they had a “significant nexus” to traditionally navigable waters.

Once the administration publishes the Proposed Rule in the Federal Register, a notice-and-comment period will begin.  Within 60 days of that publication, the regulated industry can submit written comments informing the Biden administration about the effects of the Proposed Rule and forcing the administration to explain why the Proposed Rule is necessary.  Those comments can also lay the groundwork for a legal challenge.