The U.S. Environmental Protection Agency (USEPA) and the U.S. Department of the Army announced a final rule that establishes a definition of “Waters of the United States” (WOTUS). USEPA and the U.S. Department of the Army say the final WOTUS Rule (Rule) restores essential water protections that were in place prior to 2015 under the Clean Water Act (CWA) for traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters. Both say the Rule will strengthen fundamental protections for waters that are sources of drinking water while supporting agriculture, local economies, and downstream communities.
The revised definition of WOTUS under the CWA was published on the Federal Register for public review in mid-January, and the Rule will become effective on March 20, 2023. On January 18, the same day the WOTUS Rule was posted in the Federal Register, Texas Attorney General Ken Paxton filed a lawsuit to defend the State against the “unlawful Rule defining ‘Waters of the United State’ (‘WOTUS’) which would assert Federal control over Texas land.”
In 2019 the State of Texas won a lawsuit against the Obama-era WOTUS Rule when a U.S. District Court sided with the State. Colorado, Idaho, Montana, North Dakota, South Dakota, and Wyoming are some of the States that also filed lawsuits against the Obama-era WOTUS Rule. Collectively, the lawsuits resulted in a nationwide injunction on implementation of the WOTUS Rule and the now updated definition of WOTUS in the current version of the Rule. WOTUS critics say it is contrary to the congressional intent of the CWA, and it infringes on the ability of the States to regulate their own natural resources. However, USEPA says the Rule returns to a reasonable and familiar framework founded on the pre-2015 definition with updates to reflect existing Supreme Court decisions, the latest science, and established limits that appropriately draw the boundary of waters subject to Federal protection.