What to Know About the Waters of the United States (WOTUS) Rule

Date: January 27, 2020

New Waters of the United States (WOTUS) Rule Provides Clarity and Predictability for Small Businesses and Landowners

In a move that will benefit many small business landowners, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers finalized a joint rule on January 23, 2020, to narrow and more carefully delineate federal jurisdiction under the Clean Water Act. This comes on the heels of a decision by the Trump Administration to officially rescind a 2015 rule that had sought an extreme expansion of Clean Water Act (CWA) regulation over private property—restricting even lands that are dry most of the year.

After throwing-out the Obama-era “Waters of the United States” (WOTUS) Rule in response to a lawsuit filed by NFIB and other business groups, EPA’s newly issued 2020 WOTUS rule should provide greater clarity for landowners who have historically struggled to know whether they can safely develop or use portions of their land that are occasionally wet. The 2020 WOTUS rule makes clear that private property is not subject to CWA regulation if it is wet only in response to rainfall from a storm. Water flow that is only “ephemeral” may be regulated at the state level, but is not subject to federal regulation. 

The new 2020 WOTUS Rule clarifies 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.

NFIB filed comments in support of EPA’s proposal to simplify the test for determining Clean Water Act jurisdiction. Landowners risk ruinous penalties if they inadvertently violate the CWA by adding fill or dredging within “waters of the United States.” NFIB had called upon EPA and Army Corps, throughout the litigation and rulemaking process, to provide rules that could be understood by ordinary individuals, and easily applied inspectors in the field.

Businesses with questions about Clean Water Act regulation and or the 2020 WOTUS Rule can contact the NFIB Small Business Legal Center at 800-NFIB-NOW. Luke Wake of the NFIB Small Business Legal Center will be happy to discuss your concerns.

This alert is for informational purposes only and does not constitute legal advice.


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