Waters of the United States (WOTUS) is a threshold term in the Clean Water Act (CWA) and establishes the geographic scope of federal jurisdiction for the EPA and Army Corps of Engineers (USACE) programs, including Water Quality Standards, TMDLs. WOTUS include the oceans, rivers, streams, lakes, creeks, marshes, wetlands and territorial seas considered navigable waterways and “jurisdictional” under the Clean Water Act (CWA).
But what does that really mean? It seems like it should be simple enough to answer. Over the years there have been several iterations of the definition, each being challenged in court and then being adjusted as the court rulings are taken into consideration. Finding a direct answer online is not easy. Currently, the final definition is expected September 1, 2023, which will include the May 2023 ruling by the Supreme Court in the Sackett vs EPA case.
The current (as of the time of writing) definition, which took effect in January 2023, can be found here in the Federal Register: https://www.federalregister.gov/documents/2023/01/18/2022-28595/revised-definition-of-waters-of-the-united-states. There are several pending litigations preventing the new definition to be enforced in those areas, so the Pre-2015 definition is still in effect in those locations. The pre-2015 definition can be found here: https://www.epa.gov/wotus/pre-2015-regulatory-regime The EPA has a map on its website showing which law is currently being enforced in which area.
What does the Sackett ruling say? May 25, 2023, the Supreme Court issued a ruling in Sackett vs. EPA in which it stated 1) that the lower court had applied the wrong standard for identifying WOTCS and narrowed the geographic scope of federal jurisdiction over wetlands and 2) holding that the jurisdiction of the Clean Water Act extends only over wetlands that have a “continuous surface connection” with traditional navigable water bodies of the United States.
From the Congress Research Service’s paper on the Sackett ruling: “The Court’s ruling narrows the scope of jurisdiction under the CWA as compared to both its longstanding regulatory implementation and the interpretation adopted by lower courts post-Rapanos [previous Supreme Court ruling]. While the extent of the change will depend on how the Corps and EPA implement various aspects of the decision, the Sackett majority’s exclusion of wetlands that are separated from covered waters by natural or artificial barriers means that fewer wetlands will be covered than under any regulatory framework developed by the Corps or EPA since the 1970s. Additionally, while the majority recognized that “temporary interruptions in surface connection” such as from low tides or dry spells would not defeat jurisdiction, it is not clear how temporary such an interruption must be in order to preserve a wetland’s jurisdictional status. Additionally, with respect to the bodies of water that are considered ‘waters’ under the CWA, the majority’s ruling covers ‘only those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes.’ The majority opinion does not explicitly address ephemeral waters, which flow only in response to precipitation, or intermittent waters, which flow continuously during certain times of year (such as when snowpack melts). At a minimum, however, the majority’s interpretation would appear to exclude ephemeral waters. This narrows the scope of waters as compared to the 2023 WOTUS Rule (but not the 2020 Navigable Waters Protection Rule).”
Over the years there have been many interpretations and rules put into place by the EPA and USACE, many expanding the definition of WOTUS and thereby the government’s jurisdiction under the Clean Water Act. With each of these interpretations and rules, there have been legal challenges and court decisions that help reshape the definition of the law. As we await the arrival of the latest definition (final definition?) from the governing agencies, it appears as though the jurisdictional area will be significantly decreased or limited. Until that time, the country is divided into areas being held to the new 2023 rule and to those being held to the pre-2015 rules, depending on litigation status.
Sources:
https://www.seswa.org/advocacy#wotus
https://www.epa.gov/cwa-404/definition-waters-united-states-under-clean-water-act
