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.” For more information, NFIB Small Business Legal Center’s WOTUS Explainer.
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, On December 30, 2022, the Environmental Protection Agency (EPA) and the Army Corps of Engineers issued its final WOTUS rule.
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. EPA. The “Revised Definition” rule comes even though the case is still pending.
Small business owners have fought federal overreach on this issue for decades, and at last the issue will be decided by the U.S. Supreme Court. If you are concerned with the Biden Administration’s expansion of WOTUS, NFIB is looking for anecdotes. If you have been impacted by WOTUS, please share your experience through our brief WOTUS Impact Survey.