New 'Waters of the U.S.' Rule on Hold: Enduring Debate Creates Uncertainty for Developers

By: Susan K. Hori
– Environmental Leader

In 1985, the U.S. Supreme Court issued the first of three key decisions interpreting the phrase "waters of the U.S." to define the scope of federal permitting jurisdiction under the Clean Water Act. Thirty years, three Supreme Court decisions, and one million comments later, the U.S. Army Corps of Engineers (the Corps) and the Environmental Protection Agency (EPA) issued their new definition of "waters of the U.S." (or WOTUS) on June 29, 2015. Even before it could take effect, the rule was suspended nationwide creating confusion and uncertainty regarding Clean Water Act permit requirements.

When the Clean Water Act was enacted in 1972, Section 404 required permits for the discharge of dredged or fill material into "navigable waters." The Act defined navigable waters as "waters of the U.S., including the territorial seas." When the Section 404 regulations were ultimately adopted in 1984, a wide range of aquatic areas, many of which were clearly never subject to navigation, were included under the WOTUS umbrella. As a result, much of the controversy over the Section 404 program involves the long regulatory reach to require permits for activities in "waters of the U.S." that are neither navigable nor contain water.

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