Navigable Waters Protection Rule

Waters of the United States (WOTUS) is a threshold term in the Clean Water Act (CWA) that establishes the scope of federal jurisdiction. WOTUS is not defined in the CWA, but rather provides discretion for the USEPA and USACE to define WOTUS. As you might imagine, there have been several interpretations (including three U.S. Supreme Court decisions) since the CWA was passed. 

In January 2020, the Navigable Waters Protection Rule narrowed what was considered under federal jurisdiction. On August 30, 2021, a federal judge in Arizona ordered that the Navigable Waters Protection Rule be vacated and remanded.  Therefore, USEPA and USACE are now interpreting WOTUS consistent with the pre-2015 regulatory rules until further notice. The agencies have also indicated they intend to initiate a rulemaking process to put forth a new rule to establish a more durable definition of WOTUS that considers all of the relevant court decisions to date.  It is an ever-changing landscape – stay tuned and be sure you seek the latest guidance.