What is WOTUS?
Under the Clean Water Act (CWA), the federal government maintains regulatory authority over certain bodies of water. The EPA and U.S. Army Corps of Engineers are charged with enforcing the CWA, which it does under the “Waters of the United States Rule,” or WOTUS Rule. That rule says which bodies of water are under federal jurisdiction. Over the years, the federal bureaucracy and liberal administrations have attempted to greatly expand what waters fall under WOTUS.
Any small business owner who owns land with any sort of water on it, no matter how minor, may be affected by WOTUS. That is because WOTUS determines whether portions of land that are occasionally wet – known as ephemeral water flow – may be safely developed or used without expensive and time-consuming federal permits. Other small business owners may be affected if their land is considered to contain “jurisdictional wetlands.”
What is the Current WOTUS Standard?
In January 2020, after repealing the Obama-era WOTUS Rule in response to lawsuits filed by NFIB and other business groups, the Trump-era EPA and Army Corps of Engineers issued a new Navigable Waters Protection Rule (NWPR). The NWPR provided greater clarity for landowners by clarifying that only the following waters are subject to CWA regulation:
- Traditional navigable waters (e.g., oceans, bays, sounds, rivers);
- Streams and other tributaries with a continuous surface connection to traditional navigable waters on a regular basis in a typical year;
- Lakes, ponds and other impoundments with a continuous surface connection to traditional navigable waters on a regular basis in a typical year; and
- Wetlands that touch traditional navigable waters, or other regulated waters.
The Trump-era NWPR was important to small farmers, ranchers, and property owners or developers. However, the NWPR was recently blocked by a federal court and the Biden Administration is seeking to replace it with a rule that would expand federal jurisdiction. The new rule would significantly impact owners with lands that are wet only part of the year, similar to what was proposed during the Obama Administration. In addition, the legal battle over the NWPR reached new heights in February 2022 when the U.S. Supreme Court agreed to hear Sackett v. Environmental Protection Agency, a case that is expected to define the future of WOTUS.