Waters of the U.S. Action Center
Waters of the United States (WOTUS) is a term used in the Clean Water Act (CWA) to determine which waters and their conveyances fall under federal and state permitting authority.
NACo's Public Comments
Review NACo's most recent public comments submitted to the EPA and Army Corps on WOTUS.
NACo's Regulatory Analysis of the Proposed Rule
Review NACo's regulatory analysis of the proposed rule and learn about its impacts on county-owned infrastructure.
Current Implementation of WOTUS
Review the current definition the EPA and Army Corps are implementing across the country.
Waters of the U.S. Regulatory Update
Sep. 15, 2021
NACo staff provide a regulatory update on WOTUS. Public comments on the WOTUS rule were due October 4.
Quick History on WOTUS
- In the 1980s, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps) defined WOTUS to include, among other things, all waters and wetlands the use, degradation, or destruction of which could affect interstate or foreign commerce.
- In 1985, the Supreme Court unanimously upheld “adjacent wetlands” in the United States v. Riverside Bayview Homes.
- In 2001, the Supreme Court heard Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC). This case does not confer federal jurisdiction over isolated waters because they provide habitat for migratory birds.
- In 2006, the Supreme Court heard Rapanos v. United States, which argued that WOTUS encompasses “relatively permanent, standing or continuously flowing bodies of water,” such as streams, rivers, or lakes and wetlands that have a “continuous surface connection” to waters subject to the CWA. Furthermore, the wetlands with a “significant nexus” to traditionally navigable waters were also deemed under federal jurisdiction.
- In 2015, the Obama Administration finalized a new and controversial WOTUS definition which was immediately challenged in the courts. This left the pre-2015 WOTUS rule in effect in 28 states and the 2015 WOTUS rule was the law of the land in 22 states until April 2020.
- The Trump Administration repealed and replaced the 2015 rule and released its definition of WOTUS within the Navigable Waters Protection Rule (NWPR) in January 2020, more than two years after an Executive Order (EO) was issued to withdraw and rewrite the 2015 rule. In response to the proposed 2020 rule, NACo submitted comments detailing the rule’s potential impact on counties and offering recommendations.
- In January 2021, President Biden signed EO 13990, which triggered a review of the 2020 rule to uphold a campaign promise of repealing and replacing the 2020 rule. On June 9, 2021, the EPA and the Army Corps announced their intent to initiate a new two-step rulemaking process.
- On August 30, 2021, the U.S. District Court for the District of Arizona vacated and remanded the NWPR in the case Pasqua Yaqui Tribe v. United States Environmental Protection Agency. Due to the Court's decision, the EPA and Army Corps are interpreting WOTUS consistent with the pre-2015 regulatory regime until further notice.
- On October 4, 2021, the public comment period for the EPA and Army Corps' federalism partners closed. To review NACo's public comments, please click here. To review the joint comment submitted with the National League of Cities and the U.S. Conference of Mayors, please click here.
- On November 18, 2021, the EPA and Army Corps announced the proposed rule to codify the EPA and Army Corps implementation of the pre-2015 WOTUS guidelines.
- On December 7, 2021, the EPA and Army Corps published in the Federal Register the proposed rule revising the definition of WOTUS. Comments must have been received on or before February 7, 2022.
- On February 7, 2022, NACo submitted public comments. To review our public comment, please click here. To review the join public comment submitted with the National League of Cities and the U.S. Conference of Mayors, please click here.
Where We are Today
The first rulemaking is to repeal and replace the NWPR and re-implement the pre-2015 WOTUS rules, including the Supreme Court decisions. On November 18, 2021, the EPA and Army Corps announced the proposed rule to codify the EPA and Army Corps implementation of the pre-2015 WOTUS guidelines. On December 7, 2021, the EPA and Army Corps published in the Federal Register the proposed rule revising the definition of WOTUS. Comments must have been received on or before February 7, 2022.
On February 7, 2022, NACo submitted public comments. To review our public comment, please click here. To review the join public comment submitted with the National League of Cities and the U.S. Conference of Mayors, please click here.
The EPA and Army Corps announced a process for stakeholders to submit nomination letters to the agencies to potentially be selected for one of ten geographically focused roundtables. The agencies asked that each roundtable should include diverse perspectives and highlight the experience of individual participants with the definition of WOTUS. The EPA and Army Corps are hosting virtual hearings on the proposed definition of WOTUS. To learn more and register for the virtual public hearings, please click here.
- For more information on the first rulemaking, please click here.
The second rulemaking is to craft a durable definition based on Supreme Court precedent and draw from the lessons learned from the current and previous regulations.
County-owned infrastructure potentially impacted by WOTUS designations
The WOTUS definition directly impacts local governments as owners and operators of local infrastructure, co-regulators and stewards of the environment. Counties own and operate public safety water conveyances, stormwater municipal separate stormwater sewer systems (MS4), green infrastructure construction and maintenance projects, water reuse and infrastructure, and emergency management readiness. Depending on the final definition of WOTUS, counties may need to apply for a federal permit to maintain or build new infrastructure projects.
- Public Safety Water Conveyances: Roads and roadside ditches, flood control channels, drainage conveyances, culverts, etc.
- Stormwater Municipal Separate Storm Sewer Systems (MS4): Comprised of channels, ditches and pipes
- Green Infrastructure Construction and Maintenance Projects: Includes but is not limited to low-impact development projects (LID), bioswales, vegetative buffers, constructed wetlands, stormwater detention ponds, etc.
- Drinking Water Facilities and Infrastructure Reservoirs, dams, ponds, canals, large water transport systems (Central Arizona Project, California Aqueduct, Colorado River Aqueduct, etc.)
- Water Reuse and Infrastructure: Includes facilities built to generate additional water supply, their ponds, recharge basins, canals and ditches.
To review public comments NACo has submitted to the EPA and Army Corps in the past, please click here.