2020 to Today

BIDEN ADMINISTRATION In 2020, President Biden was elected and undertook a similar process as President Trump to rescind the NWPR and move forward with a proposed WOTUS definitional rule of his own. This rule was announced on Dec. 30, 2022 and will be final once it is published in the Federal Register.

In contrast with the Navigable Waters Protection Rule (“NWPR”), which provided WAC members long-overdue certainty in describing what features are or are not WOTUS, President Biden’s WOTUS Rule codifies a return to unpredictable case-by-case determinations of jurisdiction by agency staff, thereby subjecting WAC members and landowners nationwide to considerable confusion about what features on their lands may be jurisdictional. This confusion deprives regulated stakeholders of what the CWA requires and makes it impossible for the private sector to make informed decisions about the operation, logistics, and finances of their businesses.

Stakeholders have consistently urged the Agencies to define “waters of the United States” in a way that: gives appropriate weight to the explicit statutory policy to recognize, preserve, and protect the States’ traditional and primary authority over land and water use; adheres to the full Supreme Court precedent on the definition of WOTUS under the CWA; gives effect to the term “navigable” in the statutory text; draws clear lines between federal and state or tribal jurisdiction so that regulators and regulated entities can easily identify what features are subject to federal CWA jurisdiction; and accounts for science, but recognizes that the statutory text ultimately dictates jurisdiction.

With this latest rulemaking the Agencies are back to their old ways of testing the outer limits of their authority. It is important for small businesses, farmers and regulators to have a consistent, clear regulation — complex rules create uncertainty and confusion which disproportionately affect small businesses because they have less resources to assist them with compliance. Complex rules also needlessly hinder efforts to improve infrastructure resilience, property development and job growth. Maintaining a workable WOTUS definition is vital for continued economic growth in the U.S., while protecting water resources. Maintaining that balance is all the more important during this time of economic recovery.

Riggs is RLI’s Advocacy Liaison for the National Association of REALTORS® and Director of Environmental and Sustainability Policy for NAR. He holds a bachelor’s in political science from Virginia Commonwealth University, a master’s in public policy from Tufts University, and a master’s in public administration from New York University.