Waters of the US (WOTUS)
What is WOTUS?
The 1972 amendments to the Clean Water Act established federal jurisdiction over “navigable waters,” defined in the Act as the “waters of the United States” (CWA Section 502(7)). Many Clean Water Act programs apply only to “waters of the United States.” The Clean Water Act provides discretion for EPA and the U.S. Department of the Army (Army) to define “waters of the United States” in regulations.
Current Implementation of WOTUS
The Environmental Protection Agency and U.S. Army Corps of Engineers (the agencies) are in receipt of the U.S. District Court for the District of Arizona’s August 30, 2021, order vacating and remanding the Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. In light of this order, the agencies have halted implementation of the Navigable Waters Protection Rule and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice. The agencies continue to review the order and consider next steps. This includes working expeditiously to move forward with the rulemakings announced on June 9, 2021, in order to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth. The agencies remain committed to crafting a durable definition of “waters of the United States” that is informed by diverse perspectives and based on an inclusive foundation.
On June 9, 2021, EPA and Department of the Army announced their intent to initiate a new rulemaking process that restores the protections in place prior to the 2015 WOTUS implementation and develops a new rule to establish a durable definition of “waters of the United States.” A durable definition of WOTUS is essential to ensuring clean and safe water in all communities—supporting human health, animal habitat, agriculture, watersheds, flood management, local economies, and industry. This rulemaking process follows a review conducted by the agencies as directed by January 20, 2021 Executive Order 13990 on “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” The Agencies have now announced initial public meeting dates and requested written pre-proposal recommendations regarding defining “waters of the United States.”
Further details about the Agencies’ plans, including information regarding the upcoming public meetings and pre-proposal recommendations docket, can be found here.
The agencies are interpreting "waters of the United States" consistent with the pre-2015 regulatory regime until further notice. If a state, tribe, or an entity has specific questions about a pending jurisdictional determination or permit, please contact a local U.S. Army Corps of Engineers District office or EPA.