Biden Administration Proposes A Reset On Defining "Waters Of The U.S."

Over the past week, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers announced plans to undo the Trump administration's Navigable Waters Protection Rule, and take the Biden administration's next steps toward promulgating an "enduring definition" of "waters of the United States" (WOTUS) under the Clean Water Act (CWA). If completed, this effort would mark the third rewrite of the WOTUS definition in as many administrations.

EPA and the Corps intend to revise the WOTUS definition using a two-step approach akin to the process the Trump administration relied on in 2018: (1) restore the 1986 regulatory definition of WOTUS that had applied before the Obama (2015) and Trump (2020) administrations' revisions, and (2) then replace it with a new definition of WOTUS. In doing so, the Biden administration intends to draw from a variety of sources, including guidance from the George W. Bush administration on the scope of federal jurisdiction under