Landowners often face a vexing question: When must I have regulatory permission to affect a wet—or sometimes wet, or even infrequently wet—area of my property? The issue is a messy knot of questions related to federal and state jurisdiction, technical factors related to the hydrological function and interconnectedness of waters, and the ecological use of waters. While landowners look for certainty, Congress, the Army Corps of Engineers, and the Environmental Protection Agency (EPA) have failed to deliver.
The Clean Water Act (CWA) restricts actions that affect “navigable waters.” 33 U.S.C. § 1251. That term is defined under the CWA as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). This definition has long been understood to include waters that are not in fact navigable. The Army Corps of Engineers and the EPA recently enacted a rule to clarify the meaning of “waters of the United States” (WOTUS). 80 Fed. Reg. 37054 (June 29, 2015). The exact jurisdictional boundaries of the CWA—particularly as applied to wetlands—remain unclear, however, because numerous legal challenges arose after publication of the rule. The Sixth Circuit stayed nationwide implementation of the WOTUS rule in October 2015. Landowners are unlikely to get clarity on this issue until the rule challenges conclude, which will probably take two or more years.