Predictions for WOTUS under President Biden

We are about one month away from a change in presidential administrations. The Biden administration will likely bring many obvious changes to the federal government, but will it impact whether the government has jurisdiction over ground or waters on your property? In other words, will the Biden government seek to change the definition of Waters of the United States (“WOTUS”)?

In August 2015, the Obama administration’s WOTUS definition became effective. Less than two years later, Trump signed an executive order directing the U.S. Army Corps of Engineers and the Environmental Protection Agency (“EPA”) to revisit the WOTUS definition. The order instructed the agencies to draft a new regulation relying on Justice Scalia’s dissent in the landmark Rapanos case (Scalia essentially said WOTUS should only be navigable waters).

The agencies first had to “repeal” the Obama-era WOTUS definition. They did this via a rule published in October 2019. The repeal was effective in December 2019. In January 2020, the Trump administration signed the new Navigable Waters Protection Act (“NWPR”), which was effective in June 2020, completing the “replace” portion of the rule-making process. The NWPR arguably reduced the waters under federal jurisdiction, giving peace of mind to many farmers and land developers, but worrying environmentalists and other activist groups.

So, could the Biden administration use the same process to repeal and replace the NWPR? In theory, yes. The EPA and Army Corps could “repeal” the NWPR and replace it with a new rule. Because the NWPR was finalized and effective more than 60 “session days” ago, the Biden EPA would have to go through the full rule-making process. If the NWPR had been effective more recently, it is possible the Congressional Review Act would have allowed Congress to short-circuit the process.

Another Scalia decision could play a role in whether the Biden administration will change the regulations defining WOTUS. In FCC v. Fox Television (a case about swear words on tv), Scalia wrote for the majority and held that a federal administrative agency can change regulations without it being considered arbitrary and capricious as long as it provides a “reasoned explanation” for the change. Of course, legal scholars and scientists disagree about just what constitutes a “reasoned explanation.” In the meantime, litigation over the NWPR continues to percolate across the country.

Another route the Biden administration could take is to change the guidance documents, forms, and informal policies used by the EPA and the Army Corps in considering WOTUS. The agencies have numerous user manuals, guidance documents, and forms related to jurisdictional determinations, permit applications, and other WOTUS decisions. A Biden administration EPA could revise the forms to gather more information about wetlands, precipitation rates, and soil types. This information could be used by state governments and the federal government.

The Biden transition webpage includes climate change and the environment as one of the “priorities.” Of course all water is connected, so we'll see whether this includes Waters of the United States.