On Feb. 7, the deadline to submit comments on a new definition of “Waters of the United States” (WOTUS) passed and the Environmental Protection Agency (EPA) will soon be finalized. This definition sets the boundaries of the authority that EPA and the Army Corps of Engineers (ACOE) have over waterways, waterbodies, and drainage features it regulates under the Clean Water Act. This definition is the third to be finalized during the last three administrations that have occupied the White House. A fourth definition is expected from the current administration if it stands by a proclamation to “build on the regulatory foundation” of its first rule — what I have decided to refer to as WOTUS 3.0.
For those unfamiliar with the general details of WOTUS 3.0, it returns to rely heavily on “significant nexus,” a concept crafted by former Supreme Court Justice Anthony Kennedy that attempted to provide better guidelines for determining the jurisdictional status of wetlands with no surface connection to an “in fact” WOTUS. It has become increasingly clear that EPA sees the concept as a mechanism to expand its jurisdictional reach to every water and drainage feature on the horizon, no matter how small or discernable, first in 2014 with the Clean Water Rule and now with WOTUS 3.0.