WOTUS Is Redefined by the Biden Administration-WOTUS Is Redefined by the Biden Administration Recording

Video Transcription

Video Summary

The webinar, presented by environmental law experts Jay Johnson, Aaron Abner, and Fred Wagner from Avenable firm, reviewed the Biden administration's 2023 Waters of the United States (WOTUS) rule, focusing on regulatory definitions, historical context, and ongoing legal challenges. The WOTUS rule clarifies jurisdictional waters under the Clean Water Act, revising prior Obama-era standards and superseding the largely unenforced 2020 Trump rule. Central to the new rule are five categories of jurisdictional waters: traditional navigable waters, impoundments, tributaries (meeting either "relatively permanent" or "significant nexus" standards), wetlands adjacent to these waters, and certain interstate waters meeting the same tests.<br /><br />Key terms discussed include "adjacent," now more flexibly defined to mean bordering, contiguous, or neighboring wetlands, and "tributaries," deliberately not redefined but guided by longstanding agency practice. The Biden rule emphasizes flexible, case-by-case assessments rather than highly technical criteria, aiming for regulatory durability but raising concerns about potential vagueness and inconsistent enforcement. The "relatively permanent" category relates to traditionally navigable waters, while the "significant nexus" test determines if a waterbody significantly affects downstream waters' chemical, physical, or biological integrity, a pivotal and litigation-prone concept derived from the 2006 Supreme Court Rapanos decision.<br /><br />The panel reviewed longstanding exclusions, such as certain ditches, waste treatment systems, and prior converted cropland, while clarifying that many man-made features may still be jurisdictional. They highlighted ongoing and pending legal challenges, notably in Texas courts and the Supreme Court’s Sackett case, which tests the scope of "adjacent" wetlands. The Biden rule aims for continuity with past standards but faces criticism for breadth, flexibility, and potential regulatory overreach.<br /><br />Ultimately, the panel views the rule as a return to established regulatory practice, foreseeing some case-by-case disputes and varied regional enforcement but not a radical expansion of jurisdiction. Future litigation and political actions, including congressional scrutiny and possible legislative exclusions, will shape WOTUS's enduring application.

Keywords

Waters of the United States

WOTUS rule 2023

Clean Water Act jurisdiction

Biden administration environmental policy

regulatory definitions wetlands

significant nexus test

relatively permanent tributaries

Supreme Court Rapanos decision

legal challenges Texas courts

Sackett case wetlands