Waters of the U.S. (WOTUS)

The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) issued their final “Waters of the U.S.” in 2015. The final rule identifies six types of waters that are within the two agencies’ jurisdiction and two categories of waters for which a case-by-case determination is required. While EPA and the Corps contended that they have merely clarified their jurisdictional authority under the Clean Water Act (CWA) to regulate waterways and other water bodies in the United States, many states and industry stakeholders view the actions as a power grab.

In January 2018, the U.S. Supreme Court sided with industries’ argument that the federal district courts should hear the first legal challenges to the regulation, reversing the stay of the Sixth Circuit. EPA and the Corps then published a final rule in the Federal Register in February 2018, announcing a new applicability date of February 6, 2020 for the WOTUS rule. EPA and the Army Corps have commenced a two-step rulemaking process to reconsider WOTUS and re-codify the previous definition. In the second step, the agencies are working to reconsider and revise the scope of the regulation overall.