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ARTICLE EXCERPT: The Unsettled Definition of Waters of the United States

Since the Water Pollution Control Act (Clean Water Act or "CWA") inception in 1972, a key issue has been:

Which waters of the United States ("WOTUS") are regulated under the CWA and which are left to the states to regulate.

The answer to this question definition of WOTUS touches everything from farming to homebuilding, mining, oil and gas exploration and production, forestry, manufacturing, roadbuilding, commercial construction, etc.

A recent article by environmental attorney Bruce Flowers examines the ramifications of this issue and covers:

  • Defining WOTUS addressed in several US Supreme Court cases, most importantly Rapanos v. United States (2006).
  • In 2015, the Obama administration proposed a new expansive definition of WOTUS – the Clean Water Rule ("CWR"). The WR sought to expand Federal jurisdiction based on the “significant nexus” test.
  • Court challenges resulted in injunctions preventing nationwide implementation and left the US with a patchwork of regulations and uncertainty.
  • On February 28, 2017, President Trump signed the Executive Order on “Restoring the Rule of Law, Federalism, and Economic Growth.
  • The Trump administration has proposed a new definition of WOTUS.
  • The proposed definitions seek to more clearly define the difference between federally regulated waterways and those waters that remain under state authority.
  • Given the historic splits between the Federal Circuits, the WOTUS definition will likely be tied up in litigation for years.

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