The federal government redefined Waters of the United States recently—a change that will have an significant impact on developers. However, the change is not the first. The definition of Waters of the US has been often contested, with many wondering if the regulation should come from the federal or state level.

“In many ways, this most recent effort to redefine Waters of the United States is only another plot twist in the long-running saga to establish the scope of the federal government’s jurisdiction over wetlands and other water features,” Scott Birkey, land use and natural resources partner at Cox, Castle & Nicholson, tells GlobeSt.com. “Since the inception of the Clean Water Act permitting program in 1973, the definition of Waters of the United States has been hotly contested.  After some initial legal skirmishes, the federal government established a set of regulations in 1986 that reflected an impasse rather than a resolution of the issue.”

In the past, the Supreme Court has also weighed in on the issue, deciding the federal government’s jurisdiction over waters. “Things got even more interesting as the United States Supreme Court began considering the question of whether the federal government was overreaching in its regulation of wetlands and other water features.  At the center of that judicial debate was the definition of Waters of the United States. The Supreme Court’s latest decision on the issue—a case called Rapanos v. United States decided in 2008—staked out three different perspectives on the issue,” says Birkey. “The late Justice Scalia was the architect of the opinion that drew the most support from the court.  In his view, Waters of the United States should be understood to mean relatively permanent, standing or continuously flowing bodies of waters—such as streams, oceans, rivers, and lakes—or waters that abut those bodies of water.”

However, even this Supreme Court case did little to resolve the debate around the Clean Water Act. “Because the Supreme Court’s decision in Rapanos didn’t result in a majority opinion, Rapanos did little to resolve the issue,” says Birkey. “In fact, in many ways, it only complicated things.  Shortly after Rapanos, there were many attempts by the Legislature to provide a legislative fix to the problem, none of which was successful.  Feeling pressure from both the regulated community and environmental organizations, the Obama Administration attempted to settle the issue once and for all by redefining Waters of the United States using a concept called “significant nexus” and creating certain bright-line rules as to the limits of jurisdictional waters.  This effort resulted in the “Clean Water Rule” adopted in 2015.”

Throughout this period of debate, the real estate community has been in opposition. “Without a doubt, the Clean Water Rule would have expanded the federal government’s Clean Water Act jurisdiction,” says Birkey. “Builders, industry, and others in the regulated community viewed this expansion as an impermissible overreach and strongly objected to the Clean Water Rule.”

The most recent redefinition of Waters of the United State is more political than is has been in the past. “The impetus for this most recent attempt to redefine Waters of the United States is the culmination of President Trump’s promise on the campaign trail in 2015 to dismantle the Obama Administration’s Clean Water Rule,” says Birkey. “Shortly after his election, Trump issued an Executive Order that called for a rescission of the Clean Water Rule and a reevaluation of what should constitute Waters of the United States. But the Executive Order didn’t stop there.  It told the EPA and the Corps of Engineers to reevaluate Waters of the United States in a manner consistent with Justice Scalia’s opinion in the Rapanos case, in other words, with an eye toward a common understanding of the meaning of water.”