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Changing Tides: WOTUS and the Jurisdiction of the Clean Water Act

5/23/22

By: Alec D. Tyra

Clean Water Act: What is WOTUS? 

The Clean Water Act (CWA) was enacted to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The act, among other things, regulates the discharge of any pollutant from any point source to navigable waters and the discharge of dredged or fill material into navigable waters. The statute defines “navigable waters” as “waters of the United States” (WOTUS). The definition of WOTUS is, therefore, fundamental for projects that require CWA permits. 

While federal jurisdiction under the CWA is established by the scope of the WOTUS definition, it is not actually defined in the Act. How the phrase is interpreted can affect a multitude of regulatory issues, such as:  

• the applicability of water quality standards;  
• total maximum daily loads;  
• dredge and fill permit requirements;  
• state and tribal water quality certification programs;  
• National Pollutant Discharge Elimination System (NPDES) permit requirements. 

History of WOTUS 

The ambiguity in the statute has created confusion for the regulated community for many years. In 1986, the EPA defined WOTUS as including “all waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce,” their tributaries, and their wetlands. The full 1986 regulatory definition can be found here.   

The Supreme Court’s landmark 4-1-4 decision in Rapanos v. United States created two competing standards – the “relatively permanent” test in Justice Scalia’s plurality opinion and the broader “substantial nexus” test outlined in Justice Kennedy’s concurrence – in determining if a body of water is a WOTUS. Without a majority opinion, the EPA and Army Corps of Engineers found it could use either test in determining if a body of water was a WOTUS in regulatory decisions.  

In 2015, the Obama administration finalized its Clean Water Rule, which provided a new WOTUS definition that, it said, was intended in part to clarify which streams and wetlands fall under CWA protections. This rule covered many bodies of water that had not previously been considered a WOTUS, including certain wetlands and intermittent streams that are dry for part of the year. In 2019, the Trump administration rolled back the 2015 rule. Then, in 2020, the Trump administration implemented its replacement when it finalized the Navigable Waters Protection Rule (NWPR). The NWPR eliminated some of the 2015 rule’s protections, including protections for wetlands and intermittent streams. The NWPR’s more restrictive standard left some traditionally/historically navigable but now dry rivers in the West (like portions of the Salt River in Arizona or San Joaquin River in California) without protection under the CWA.  

New Definition of WOTUS 

2022 marks the 50th Anniversary of the passage of the 1972 amendments to the Federal Water Pollution Control Act. The 1972 amendments are now what we commonly refer to as the Clean Water Act. For the past fifty years the extent of the legislation’s jurisdiction has continued to evolve. In 2021, the Biden administration rolled back the NWPR and issued an executive order requiring the EPA and Army Corps of Engineers to create a new definition of WOTUS. The Biden administration adds the next chapter in the ebbs and flows of WOTUS and the CWA. 

The Agencies’ current proposed rule, and would define “waters of the United States” as follows: 

• “Traditional navigable waters, interstate waters, and the territorial seas, and their adjacent wetlands; 
• most impoundments of ‘waters of the United States’; 
• tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments that meet either the relatively permanent standard or the significant nexus standard; 
• wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard; 
• and ‘other waters’ that meet either the relatively permanent standard or the significant nexus standard.” 

The proposed rule would in effect return to the 1986 definition of WOTUS and the agency application of the Rapanos decision. The EPA and Army Corps of Engineers are conducting ‘roundtable’ talks with interested stakeholders to discuss the proposed rule and respond to public comments this spring and summer. A final rule will likely be promulgated sometime after the roundtable talks – likely in early 2023.  

The regulated community should take note of the changing definition of WOTUS. Streams and other bodies of water that were not covered under the NWPR may now fall into the CWA’s jurisdiction. Unregaled discharges into bodies of water covered by the CWA could result in civil fines. Members of the regulated community, such as design professionals, developers, construction contractors or environmental professionals involved in projects requiring a NPDES permit should contact an environmental attorney to discuss new compliance standards.  

For more information on this topic, please contact Alec D. Tyra or one of FMG’s environmental attorneys.