Quick History on WOTUS 

• In the 1980s, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps) defined WOTUS to include, among other things, all waters and wetlands the use, degradation, or destruction of which could affect interstate or foreign commerce. 
• In 1985, the Supreme Court unanimously upheld “adjacent wetlands” in the United States v. Riverside Bayview Homes. 
• In 2001, the Supreme Court heard Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC). This case does not confer federal jurisdiction over isolated waters because they provide habitat for migratory birds.  
• In 2006, the Supreme Court heard Rapanos v. United States, which argued that WOTUS encompasses “relatively permanent, standing or continuously flowing bodies of water,” such as streams, rivers, or lakes and wetlands that have a “continuous surface connection” to waters subject to the CWA. Furthermore, the wetlands with a “significant nexus” to traditionally navigable waters were also deemed under federal jurisdiction. 
• In 2015, the Obama Administration finalized a new and controversial WOTUS definition which was immediately challenged in the courts. This left the pre-2015 WOTUS rule in effect in 28 states and the 2015 WOTUS rule was the law of the land in 22 states until April 2020. 
• The Trump Administration repealed and replaced the 2015 rule and released its definition of WOTUS within the Navigable Waters Protection Rule (NWPR) in January 2020, more than two years after an Executive Order (EO) was issued to withdraw and rewrite the 2015 rule. In response to the proposed 2020 rule, NACo submitted comments detailing the rule’s potential impact on counties and offering recommendations. 
• In January 2021, President Biden signed EO 13990, which triggered a review of the 2020 rule to uphold a campaign promise of repealing and replacing the 2020 rule. On June 9, 2021, the EPA and the Army Corps announced their intent to initiate a new two-step rulemaking process.
• On August 30, 2021, the U.S. District Court for the District of Arizona vacated and remanded the NWPR in the case Pasqua Yaqui Tribe v. United States Environmental Protection Agency. Due to the Court's decision, the EPA and Army Corps are interpreting WOTUS consistent with the pre-2015 regulatory regime until further notice.
• On October 4, 2021, the public comment period for the EPA and Army Corps' federalism partners closed. To review NACo's public comments, please click here. To review the joint comment submitted with the National League of Cities and the U.S. Conference of Mayors, please click here.
• On November 18, 2021, the EPA and Army Corps announced the proposed rule to codify the EPA and Army Corps implementation of the pre-2015 WOTUS guidelines.
• On December 7, 2021, the EPA and Army Corps published in the Federal Register the proposed rule revising the definition of WOTUS. Comments must have been received on or before February 7, 2022.
  • To review NACo's regulatory analysis of the proposed rule, please click here. 
• On February 7, 2022, NACo submitted public comments. To review our public comment, please click here. To review the join public comment submitted with the National League of Cities and the U.S. Conference of Mayors, please click here. 
• On January 18, 2023 the EPA and Army Corps published the final rule in the Federal Register.
• The final rule will take effect March 20, 2023.

What Happens Next? 

The final rule will take effect on March 20, 2023.

However, the final rule was published ahead of the Supreme Court's decision in Sackett v. EPA. The case focuses on the significant nexus test, on which this rule heavily relies, and the Court's opinion could leave the rule vulnerable to legal challenges and may force the agencies back to the drawing board. The Court is expected to rule on the case in June 2023.

The agencies have previously stated that they will put forward a second WOTUS rule that will "consider further refinements" to the most recently published rule that will incorporate revisions based on litigation, further stakeholder engagement, implementation considerations, scientific developments and environmental justice values.

While the agencies have stated that the recently published final rule is intended to be a durable definition of WOTUS, it is likely that EPA and the Army Corps have kept a second WOTUS rulemaking on their regulatory agenda to make changes following the Supreme Court's ruling in Sackett v. EPA.

Additionally, on February 2, Committee on Transportation & Infrastructure Chairman Sam Graves and Senate Environment and Public Works Ranking Member Shelley Moore Capito introduced a joint resolution of disapproval under the Congressional Review Act (CRA) on the final WOTUS rule. If successful, the CRA would prevent the final rule from taking effect and leave the pre-2015 regulatory framework in effect. However, President Biden is guaranteed to veto the resolution if passed by Congress.

County-owned infrastructure potentially impacted by WOTUS designations

The WOTUS definition directly impacts local governments as owners and operators of local infrastructure, co-regulators and stewards of the environment. Counties own and operate public safety water conveyances, stormwater municipal separate stormwater sewer systems (MS4), green infrastructure construction and maintenance projects, water reuse and infrastructure, and emergency management readiness. Depending on whether a certain water meets the definition of WOTUS, counties may need to apply for a federal permit to maintain or build new infrastructure projects.

To review public comments NACo has submitted to the EPA and Army Corps in the past, please click here.