Waters of the United States (WOTUS)

What is WOTUS?

Under the Clean Water Act (CWA), the federal government maintains regulatory authority over certain bodies of water. The Environmental Protection Agency (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,” otherwise known as WOTUS. The rule determines which bodies of water are under federal jurisdiction. Over the years, federal bureaucrats and Democrat administrations have attempted to greatly expand what areas 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, review the NFIB Small Business Legal Center’s WOTUS Explainer.

What is the Current WOTUS Standard?

In January 2023, the EPA and Army Corps of Engineers issued a “Revised Definition of Waters of the United States” (WOTUS Rule or Rule). The WOTUS Rule expands the 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 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 not allowed to enforce 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.

In May 2023, the WOTUS Rule came before the U.S. Supreme Court in the Sackett v. EPA case. The Supreme Court decision had monumental implications for the EPA’s jurisdiction under the CWA. NFIB filed an amicus brief in the case arguing for a clear and consistent standard for WOTUS regulations. The Supreme Court determined the EPA had overstepped the authority granted under the CWA. This decision was a victory for farmers, ranchers, home builders, and small businesses.

Further revisions have been made by the EPA and Department of the Army since the Supreme Court decision made portions of the January 2023 rule invalid. NFIB was disappointed in the revised rule, which failed to provide any guidance on what “relatively permanent” means. These changes provide less clarity and certainty for small businesses and landowners. NFIB is continuing to challenge the revised rule in the courts.

Take Action

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 with your elected officials here.

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WOTUS Webinar

NFIB hosted a free virtual briefing with U.S. Representative Dan Newhouse on what small business landowners need to know about WOTUS.

Watch the free WOTUS briefing on-demand here.

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