A Water of the United States (or WOTUS) is a stream or wetlands, among other occasionally “wet” natural features that will subject the development of your property to federal and State scrutiny by a veritable alphabet soup of agencies. These include but are not limited to the U.S. Army Corps of Engineers (USACE), the U.S. Environmental Protection Agency (USEPA), the United States Fish and Wildlife Service (USFWS) of the Department of the Interior, the NYS Department of Environmental Conservation (NYSDEC) and the NYS Office of Parks, Recreation and Historic Preservation (OPRHP). The Federal Water Pollution Control Act and subsequent amendments referenced as Section 404 of the Clean Water Act has been around since the administration of Richard Nixon. In spite of the age of the federal statute and accompanying regulations that attempt to define what is a WOTUS, its definition is still very much in dispute in the courts. The recent history of the dispute involves at least three U.S. Supreme Court cases and a new regulation that was adopted by USEPA and USACE to “once and for all” have a workable definition of WOTUS. Since the regulation was adopted in August of 2016, it has gone unimplemented due to challenges in the Courts. In the first instance, these challenges related to which court had the privilege of deciding whether the regulations were appropriately adopted. Recently, the U.S. Supreme Court decided that the federal District (and not the federal Appellate) Courts were the appropriate location for the initial review of the adoption of the regulations. While this latest legal dispute raged, a new President was elected who charged the new Administrator of the USEPA to provide more time for the consideration of the new WOTUS regulations. In response, the USEPA adopted a new regulation that deferred the effective date of the new WOTUS regulations being challenged in the Federal Courts. This latest regulation is also being challenged in the courts.
Where does this leave the regulated community—with no clear definition of WOTUS. While the controversy rages, the USACE continues to define and delineate wetlands according to the old means and methods—on an ad hoc case by case basis. Stay tuned for more proposed regulations and federal court decisions. It is unlikely that this controversy will cease anytime soon.