Coming to a consensus on how to define “waters of the United States,” or WOTUS, has vexed lawmakers, regulators, builders and environmental advocates for decades. The issue has reached the Supreme Court at least four times since the late 1990s, and oral arguments in another case, Sackett v. EPA, are on the docket for October. Industry groups tend to favor a more narrow definition of WOTUS, while environmental groups say that ephemeral and intermittent streams, as well as headwaters, are vital to protecting water quality as required by the Clean Water Act. 

EPA and the Corps of Engineers withdrew a Trump-era rule that aligned more closely with the industry view and proposed reverting to a pre-2015 definition in November last year. The agencies said they would release a second proposal finding a legally sustainable definition that would accommodate a variety of perspectives. The second proposal has not yet been released, but the November proposal reinstating the definitions that were in place prior to both the Trump and Obama administrations could be finalized before next fall. Numerous groups, including several GOP lawmakers, have requested that EPA stop work on the regulation until the Supreme Court rules in the case. 

According to the Associated General Contractors of America, the November proposal does more than reinstate pre-2015 definitions: it expands them. In comments to the agency, AGC said the agencies “are voluntarily choosing to put in place a controversial and expansive revision, which will be a purely temporary measure before again revising the definition of WOTUS later this year.” Leah Pilconis, AGC’s construction and environmental risk management advisor, told ENR builders just want certainty. “There’s a lot riding on these jurisdictional determinations with construction projects because you have to work around areas deemed as waters of the U.S., and every couple of years, depending on who is in office, things get changed around.”