Waters of the United States over time
What are the “waters of the United States”? How have they changed over time? Here we offer an overview of how we define the waters of the U.S. and why they are important.
What are the waters of the U.S.?
The definition of "waters of the United States" (WOTUS) plays a crucial role in determining the scope of federal jurisdiction under the Clean Water Act (CWA), which is the primary federal law for protecting the quality of the nation's water resources. The CWA does not define WOTUS; rather, it provides the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE), the regulatory agencies that oversee the CWA, with the authority to define WOTUS in regulations. The definition of WOTUS has a long and complex history that has been shaped by a variety of legal, political, and environmental factors.
The term first appeared in the Federal Water Pollution Control Act of 1948, also known as the Clean Water Act (CWA), which was enacted to address growing concerns about water pollution in the United States. The original definition of WOTUS in the CWA was relatively broad, and it included all "navigable waters" as well as all "tributaries" of navigable waters. This interpretation was upheld by the Supreme Court in a number of early cases, including United States v. Riverside Bayview Homes, Inc. (1985) and Rapanos v. United States (2006).
In recent years, however, the definition of WOTUS has been the subject of ongoing debate and legal challenges. In 2015, the Obama administration issued a new rule, known as the Clean Water Rule, which expanded the definition of WOTUS to include certain types of wetlands and tributaries that had previously been excluded. This move was intended to provide greater protection for smaller bodies of water that were believed to have a significant impact on the health of larger navigable waters.
The future of waters of the U.S.
The Clean Water Rule, however, was met with significant opposition from industry groups and legislators who argued that it represented an overreach of federal authority and would place undue burdens on landowners and businesses. In 2017, the Trump administration repealed the Clean Water Rule and replaced it with a new definition of WOTUS that narrowed the scope of federal jurisdiction of water resources by removing protections for certain types of wetlands and tributaries that had been included in the 2015 rule. This action was met with legal challenges from environmental groups, and the matter is still being fought in court.
Recently, in January 2021, the EPA and USACE finalized a new definition of WOTUS based on “relevant provisions of the CWA and the statute as a whole, the scientific record, relevant Supreme Court case law, and the agencies' experience and technical expertise” implementing the longstanding pre-2015 regulations defining WOTUS”. Specifically, the new definition implements pre-2015 definition based on the principle that the EPA and the USACE should only have jurisdiction over "relatively permanent" waters or waters with a “significant nexus” to such waters. In summary, the revised definition includes:
traditional navigable waters, the territorial seas, and interstate waters
impoundments of “waters of the United States”
tributaries to traditional navigable waters, the territorial seas, interstate waters, or paragraph
impoundments when the tributaries meet either the relatively permanent standard or the significant nexus standard (“jurisdictional tributaries”)
wetlands adjacent to paragraph traditional navigable waters
wetlands adjacent to and with a continuous surface connection to relatively permanent paragraph impoundments
wetlands adjacent to tributaries that meet the relatively permanent standard, and wetlands adjacent to paragraph impoundments or jurisdictional tributaries when the wetlands meet the significant nexus standard (“jurisdictional adjacent wetlands”); and
intrastate lakes and ponds, streams, or wetlands not identified in waters defined above that meet either the relatively permanent standard or the significant nexus standard
The definition of WOTUS is not just a legal matter, it is also an environmental and public health concern. The Clean Water Act is one of the most important federal laws for protecting the quality of the nation's water resources, and the definition of WOTUS plays a key role in determining the scope of that protection. The ongoing debates and legal challenges over the definition of WOTUS highlight the ongoing challenges in balancing the need for strong water protection with the need for economic growth and property rights.
Let’s get started!
Contact MPI today with your ecological restoration and mitigation banking project needs. Our team is ready with answers and expert services to bring your vision to life.
Mitigation Partners, Inc. Founders Dax Dickson & Tory Christensen
