Army Corps Changes Course: CWA Jurisdictional Determinations May Require A New Look

In a move that could have wide-ranging implications for developers of real estate, including renewable energy projects, throughout the United States, the U.S. Army Corps of Engineers (the "Corps") recently announced that it was broadening its definition of "waters of the United States" under the Clean Water Act, consistent with the Biden Administration's policy positions and recent court litigation.  One notable result of this announcement is that project developers who obtained a Corps Jurisdictional Determination ("JD") prior to the change in policy may no longer be able to rely on it for permitting or development purposes.    

The Clean Water Act (the "CWA") prohibits the discharge of pollutants into "navigable waters," which the CWA defines broadly as "waters of the United States" ("WOTUS").  The Corps has jurisdiction under the CWA to issue permits for the discharge of dredged or fill materials into WOTUS, including wetlands adjacent to WOTUS.  By regulation,