Legal Corner: Where, Oh Where, Will All the Wetlands Go?

By Stanley A. Millan & Elise M. Henry

The battle over how to define federal waters began in the early 1970s and continues today. As a result of changing policy and legal uncertainly, it is a challenge for anyone to determine what qualifies as a “water of the United States” (WOTUS). Whether an inland wetland is considered a WOTUS is the most challenging determination to make under federal guidance and regulations. Determining what is a tributary (generally considered a WOTUS) versus a ditch (generally not a WOTUS) is troublesome, too. The confusion began when Congress defined “navigable waters” broadly in 1972 in the Clean Water Act (CWA) as “waters of the United States.” They left the word “navigable” out, making a race horse a seahorse. If only Congress had spoken more clearly, we would have had a more consistent picture for wetlands destiny.