The Biden administration has announced that the federal government will honor, on a limited basis, United States Water Determinations (WOTUS) issued under Section 404 of the Federal Clean Water Act by the Trump administration despite a 2021 Federal Court decision overturning the Trump WOTUS Definition.
This is good news for some, but bad news for those who have obtained a WOTUS determination under the Trump-era definition but have not yet received their Section 404 fill permits or who have received their permits after. the court’s decision. These permit holders or applicants may be sent back to the drawing board if their WOTUS determination conflicts with the WOTUS definition that existed prior to the 2015 Obama Administration revisions reversed by the Trump Administration.
The Clean Water Act protects navigable waters, which it defines as “United States waters”, but it does not define “United States waters”. Instead, the law authorizes the EPA and the US Army Corps of Engineers to define the extent of federal jurisdiction over US waterways through rulemaking. In 2015, the Obama administration used this authority to expand the protection of waterways and wetlands, but in 2020 the Trump administration repealed this rule and replaced it with the Navigable Waters Protection Rule. (NWPR) narrower. In August 2021, the court of Pascua Yaqui Tribe v U.S. Environmental Protection Agency overturned 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 changes to reflect the agencies’ interpretation of statutory limits and Supreme Court case law.
The Corps identifies and locates jurisdictional waters through Approved Jurisdictional Decisions (AJDs) issued to developers, landowners, and project proponents for a particular site. AJDs provide important information to developers and investors for planning purposes and to apply to the Corps for permits, including permits to discharge dredged or fill materials into United States waters. Typically, an AJD is valid for five years.
On January 5, the Corps announced that it would not rely on AJDs issued under the NWPR to make a new permit decision. Although the Corps will not revert permits issued before the court’s decision, allowing decisions made after the court’s decision of August 30, 2021, may be varied, suspended or revoked if they were based on an NWPR AJD. All pending permit applications will be assessed under the pre-2015 regime.