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New Definition of 'Waters of the United States'

By Steven M. Silverberg
April 01, 2023

In April of 2020 the EPA and the Department of the Army began the process of revising the definition of the term Waters of the United States (WOTUS). After the new administration took office in 2021, further study was conducted and a new final rule was recently published. The changes are scheduled to take effect this year, if currently pending challenges are unsuccessful. The definition is significant for a multitude of land uses, as it places limitations on activities that may be conducted within and adjacent to such waters or, in some instances, requires the issuance of permits before certain activities may be conducted.

The Clean Water Act (the Act, 33 U.S.C. 1251 et seq) enacted in 1972, established the need to regulate navigable waters to prevent pollution. The Act gave broad discretion to the EPA and Department of the Army to adopt regulations deemed necessary to implement the Act. As a result, the term "Waters of the United States" has been given a definition that is broader than might immediately seem apparent. By including adjacent and nearby lakes, streams and wetlands that meet specific definitions the rules, established based upon scientific evidence, prevent the migration of various pollutants into what traditionally would be viewed as navigable waters.

The definition has been tested over time in court. Prior to 2015 the definition broadly included those upstream waters that "… significantly affect the integrity of waters for which the Federal interest is indisputable." The purpose was to preclude activities such as dumping waste into upstream waters that would then pollute waters otherwise within the scope of concern of the Federal Government.

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