The Clean Water Act, passed by Congress in the 1970s, gave the U.S. Environmental Protection Agency and Army Corps of Engineers jurisdiction to regulate “navigable” waters, which are defined in the law as “the waters of the United States” or WOTUS. The statute does not specifically define WOTUS, but instead grants EPA and the Corps the responsibility to develop this definition through rulemaking.
A central tenet of the CWA is cooperative federalism, meaning the federal government and states must work in partnership to regulate waters. Any waters not regulated by the EPA and the Corps as WOTUS are under the authority of state and local governments.
In 2015, the EPA and the Corps enacted a controversial regulation (the “2015 WOTUS rule”) that would have drastically increased their regulatory reach by expanding the definition of WOTUS to include not only all waters in America, but even areas that ordinarily are dry land. In other words, the agencies reinterpreted the law to expand their jurisdiction at the expense of private landowners and the states. This rule was immediately halted and never went into effect in much of the country. Numerous courts also deemed the 2015 rule unlawful.
In 2020, the EPA and Corps repealed the 2015 WOTUS rule and replaced it with the Navigable Waters Protection Rule, which narrowed the scope of the definition of WOTUS and provided clear, certain rules to regulated stakeholders.
Continuing the WOTUS roller coaster, the Biden administration rescinded the NWPR rule and released a new WOTUS rule in January 2023. The rule significantly expands the jurisdiction of the federal government over wetlands on private property, much like the 2015 WOTUS rule.
The new rule was created as America awaited a decision from the Supreme Court in Sackett v. EPA, a case with significant implications for the scope of future WOTUS rules. The EPA and Corps ignored the concerns of Congress and the regulated community and moved forward with finalizing another complex and confusing rule.