A Brief History of WOTUS 

“Waters of the U.S.” is a term used in the Clean Water Act (CWA) to determine which waters and their conveyances fall under federal jurisdiction, as opposed to state permitting authority. The CWA establishes the basic governance structure for pollution of the nation’s surface water. it prohibits the discharge of certain pollutants into “navigable waters,” which are further defined as “waters of the United States, including the territorial seas.” However, the term “waters of the United States” (WOTUS) is not defined in statute. As such, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Army Corps) – the two agencies responsible for administering the CWA – have defined WOTUS in regulations.

EPA and the Army Corps (the agencies) first implemented regulations under the CWA to define WOTUS in the 1980s. Since then, there has been much debate and litigation over its definition, including in four major Supreme Court Cases:

1985: United States v. Riverside Bayview Homes, Inc.

In this case, the Supreme Court unanimously upheld that wetlands adjacent to other jurisdictional waters are subject to CWA jurisdiction.

2001: Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC)

In this case, the Supreme Court ruled against the Army Corps’ interpretation of WOTUS and held that the use of isolated ponds by migratory birds did not mean these bodies of water were subject to CWA jurisdiction.

2006: Rapanos v. United States

In this case, the Supreme Court considered whether CWA jurisdiction extends to wetlands near ditches or man-made drains that empty into traditional navigable waters. The Court ultimately issued a 4-1-4 decision, establishing two different standards, providing now majority opinion outlining how the to determine whether a body of water should be considered WOTUS.

In this opinion, Justice Scalia wrote that WOTUS includes only “relatively permanent, standing or continuously flowing bodies of waters,” including streams, rivers or lakes as well as wetlands that have a “continuous surface connection” to other waters considered WOTUS.

In a concurring opinion, Justice Kennedy wrote that wetlands should be considered on a case-by-case basis to determine whether they have a “significant nexus” to a traditionally navigable water. Justice Kennedy additionally wrote that a significant nexus exists when a wetland, “alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of” other waters subject to jurisdiction under the CWA.

2023: Sackett v. U.S. Environmental Protection Agency

In this case, the Supreme Court rejected the “significant nexus test” to narrow the reach of federal CWA protections. Under the majority opinion, written by Justice Alito, whether the CWA can regulate a wetland depends on if it is “adjacent” to WOTUS, meaning that it is “as a practical matter indistinguishable” from WOTUS and there must be “a continuous surface connection” to navigable waters. Ultimately, following this decision, the CWA will only apply to wetlands that blend or flow into neighboring navigable waters.

However, only five justices joined in the majority opinion. In the three concurring opinions, the remaining justices either argued that the new test unduly restricts federal authority or argued that it does not go far enough.

The EPA and Army Corps have also made substantial changes to the definition:

2015: The Clean Water Rule

In 2015, EPA and the Army Corps redefined WOTUS for the first time since the 1980s in the Clean Water Rule. The agencies argued that the rule provided increased clarity on CWA jurisdiction, but others contended it was federal overreach. The Clean Water Rule immediately faced legal challenges, leaving the pre-2015 regulatory framework in effect in 28 states and the new rule in place in the remaining 22.

2020: The Navigable Waters Protection Rule

The Trump administration viewed the Clean Water Rule as an undue expansion of federal authority and, in 2019, published a rule to rescind the 2015 rule and recodify the pre-2015 regulatory framework. In 2020, the agencies published the Navigable Waters Protection Rule (NWPR), which redefined WOTUS in a way that limited the kinds of water subject to federal jurisdiction.

The NWPR faced numerous legal challenges and was ultimately remanded and vacated in Pasqua Yaqui Tribe v. EPA in August 2021, leaving the pre-2015 regulatory framework in effect.

2023: The Biden administration’s WOTUS rule

In January 2023, the EPA and Army Corps released a new rule to redefine WOTUS. Because it relies heavily on both the relatively permanent standard and the significant nexus standard, the agencies will need to revise the rule in the wake of the Sackett decision.

Additionally, the rule is currently frozen in 24 states following an order issued by the U.S. District Court for the District of North Dakota in April 2023, leaving the pre-2015 regulatory framework in effect in those states.

2023: The Conforming WOTUS Rule 

In August 2023, EPA and the Army Corps issued a conforming rule to amend the 2023 WOTUS Rule consistent with the Sackett decision. The conforming rule eliminates all references to the significant nexus test, redefines adjacent to mean "having a continuous surface connection" and removes interstate wetlands from the definition of WOTUS. 

While the rule significant narrows the scope of the Clean Water Act and, therefore, federal jurisdiction over county-owned infrastructure, concerns remain. EPA and the Army Corps did not provide an explicit definition of "relatively permanent" and the provisions related to ditches remain incredibly complex. 

Further, EPA and the Army Corps did not publish a proposed version of the conforming rule, meaning that there was no opportunity for public comment. The agencies instead relied on the 'good cause' exception under the Administrative Procedure Act (APA), which allows for certain exemptions to the required notice and comment period if the agencies find, "for good cause," that complying with the APA would be "impracticable, unnecessary or contrary to the public interest." 

NACo is disappointed by the lack of opportunity for public comment. 

What Happens Next? 

The conforming rule took effect on September 8, 2023. Given the lack of public comment and the failure to define "relatively permanent," among other issues, it seems as though the conforming rule will face legal challenges, resulting in further regulatory uncertainty for counties. Additionally, several Members of Congress are discussing defining WOTUS in legislation. 

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.