Army Corps of Engineers announces it won't use relaxed Trump-era waters definition when making permit decisions

"The Biden administration last week quietly and abruptly announced that developers can no longer rely on decisions made under a high-profile Trump-era Clean Water Act rule about which waters are federally protected to obtain new permits," Hannah Northey reports for Energy & Environment News. "Legal experts say the move could have far-reaching effects throughout the building, mining and agricultural sectors."

At issue is how regulations define the Clean Water Act's definition of "waters of the United States," those regulated by the act. The Environmental Protection Agency under President Obama had expanded that term to include intermittent and seasonal waterways. Farmers and developers were unhappy with the move, saying it was government overreach and unnecessarily burdensome. The Trump administration scaled back the WOTUS definition but a federal judge tossed it on the grounds that it could harm the environment. "Notably, some argue the rule is still in effect until EPA completes the regulatory process of replacing the Trump rule with pre-2015 regulations updated to reflect consideration of Supreme Court decisions," Northey reports.

Conflicting rulings in federal district courts have sown confusion, so on Jan. 5 the Army Corps of Engineers posted on its website a new rule meant to clarify the matter. "Going forward, the Army Corps in its announcement explains that it will make new permit decisions based on the pre-2015 regulatory regime — not the Trump rule — and that the agency will talk to applicants about any pending or future permit action that relies on an approved jurisdictional determination made under the Trump rule," Northey reports. "Specifically, the Army Corps said they would talk to applicants about whether they want to receive a new determination based on pre-2015 regulations or proceed with a preliminary determination or none at all, according to the post."

The new policy could affect people who were told they had no WOTUS jurisdictional areas on their land. It could also affect developers. "Ellen Gilinsky, a former wetlands consultant and associate deputy assistant administrator for water at EPA under the Obama administration, said the Army Corps’ decision could affect anyone who had an approved jurisdictional determination under the Trump rule but figured they had five years to apply for a permit using that decision," Northey reports. "Developers that fit into that bucket, she said, are going to be surprised when they go in for a permit and are told their development plans are going to have to change."

Developers, mining companies, and farmers have objected to the Jan. 5 policy update; several legal experts told Northey the change will likely lead to multiple lawsuits. Meanwhile, EPA and the Army Corps are seeking farmers' input on a new rewrite of the definition.