Back to 1986 for the Waters of the U.S. Definition
(What’s Old is New Again)
The definition of Waters of the U.S., including wetlands and streams, is reverting to the 1986 version after an Aug. 30, 2021 U.S. District Court decision.
On August 30, 2021, a U.S. District Judge reversed the major Trump administration changes to the definition of Waters of the U.S. While the ruling was issued in the District of Arizona, the implications are apparently nationwide, though it remains to be seen if the ruling will be appealed and the effects of any appeal. The decision would appear to bring the definition back to its 1986 status, before the 2015 Clean Water Rule and the 2020 Navigable Waters Rule; it leaves in place the Supreme Court’s 2006 Rapanos and Carabell decision regarding significant nexus in surface waters. Wetland Studies and Solutions, Inc. (WSSI) will continue to follow the changing definition and will update you in Field Notes as more information becomes available and the regulatory agencies issue guidance.
Issues of import include:
- existing Jurisdictional Determinations of the limits of Waters of the U.S.
- pending Jurisdictional Determinations (including those requested and not yet verified)
- projects that are pursuing authorization for impacts to Waters of the U.S., and
- implications for state-level protection measures for surface waters.
In the meantime, please contact us with your questions about permitting and the extent of jurisdictional waters on your projects.
- Northern Virginia/headquarters: Ben Rosner or Christie Blevins
- Hampton Roads: Bob Kerr or Mark McElroy
- Central Virginia: Rebecca Napier or Robert Wright
- Southwestern Virginia: Nathan Staley or Andy Kassoff
- Maryland: Mike Klebasko or Scott Petrey
This is the latest development in the re-definition of WOTUS that in less than seven years has included two new defining Rules and a number of related lawsuits and federal court decisions. Our collection of related articles from 2015 to the present is provided below with links.
Note that this federal court action is not directly related to the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (COE)’s July 30, 2021 announcement of their intention to gather stakeholder input ahead of a rulemaking process to define WOTUS. The agencies are soliciting public comment via submission of written comments through September 3, 2021. To learn more about that separate process, please see our August 19 edition of Field Notes.
You can read about changes to the WOTUS definition in our previous Field Notes articles:
- Public Comment Period Ahead of WOTUS Rulemaking, August 19, 2021
- Navigable Waters Protection Rule in Effect, June 25, 2020
- UPDATE: WOTUS, WOTUS Everywhere, But Maybe Not?, April 21, 2020
- WOTUS, WOTUS Everywhere, But Maybe Not?, January 27, 2020
- 2015 Waters of the U.S. Rule Repealed, September 13, 2019
- WOTUS, WOTUS, Everywhere… or Not?, March 7, 2019
- Waters of the U.S.: New Definition Proposed, December 11, 2018
- WOTUS Definition in Limbo – EPA Delays Return to Pre-2015 Definition, November 8, 2018
- Federal Ruling Creates Delay in Corps of Engineers Process, August 23, 2018
- 6th Circuit Court Vacates WOTUS Rule Stay, April 11, 2018
(Reprinted with permission from the National Association of Home Builders. This article originally appeared in the February 28, 2018 edition of NAHB Now.) - WOTUS 2020 – EPA and Department of the Army Delay Clean Water Rule of 2015, February 23, 2018
- A Graphic Description of WOTUS – Wetlandia, July 9, 2015
- EPA and COE Redefine Which Wetlands and Streams are Federally Regulated, June 2, 2015