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 2023, the Biden EPA and Army Corps of Engineers issued a “Revised Definition of Waters of the United States” (WOTUS Rule or Rule). The WOTUS Rule expands EPA’s jurisdiction over private property wetlands and raises more confusion for landowners. The WOTUS Rule includes the following waters as falling under EPA jurisdiction:
- All water currently used or used in the past, or may be susceptible to use in interstate or foreign commerce;
- All interstate waters including interstate wetlands;
- All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds;
- All impoundments of waters otherwise defined as waters of the United States under this definition;
- Tributaries of waters;
- The territorial sea; and
- Wetlands adjacent to waters (other than waters that are themselves wetlands).
The WOTUS Rule comes even though the Supreme Court is currently considering Sackett v. EPA, a case which will have monumental implications for the EPA’s jurisdiction under the Clean Water Act. A decision in that case is expected before July 2023.
WOTUS Update 4/18/2023
The Biden Administration’s WOTUS Rule is currently in effect. However, due to three separate legal challenges and the district court outcomes in those cases, the Administration is enjoined from enforcing the Rule in over half of the country – 26 states to be exact. These states are Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming. In all other states, the WOTUS Rule as summarized above is in full effect and being implemented.