Biden administration releases revised definition of WOTUS

Today, the Biden administration made final its revised definition of “navigable waters” or “Waters of the United States.” This, despite a comment letter filed earlier this year by Pacific Legal Foundation (PLF) clients urging the administration to wait for the Supreme Court’s ruling in Sackett v. EPA.

Sackett, argued by PLF on October 3, aims to clarify what constitutes navigable water and, thus, the scope of federal power over private property under the Clean Water Act.

“Today’s final rule illustrates the importance of Sackett II,” said Pacific Legal Foundation attorney Charles Yates. “There is no reason to believe they have got it right this time. The definition of Waters of the United States shifts with each new presidential administration, providing property owners with no long-term clarity.”

“Absent definitive guidance from the Supreme Court, a lawful, workable, and durable definition of ‘navigable waters’ will remain elusive. Sackett II provides the Supreme Court an important opportunity to clarify and decisively end this continuous game of regulatory ping-pong.”

Successive presidential administrations have failed to craft a regulatory definition of “navigable waters” that satisfies the requirements of the Clean Water Act and survives judicial review. Today’s final rule represents the fourth time since 2015 that the EPA and the Army Corps have attempted to define that phrase.