When it comes to legal definitions, only a few have been as controversial for the real estate sector as what constitutes “the waters of the United States.” 33 U.S.C. 1362(7). Also known by the now-infamous acronym “WOTUS,” challenges to the regulatory framework behind it have created one of the most protracted regulatory battles on record—all the while leaving the fate of those seeking real estate permits in a state of great ambiguity where each situation requires a case-by-case assessment as opposed to adherence to a set of standard rules.

Section 401(a) of the Clean Water Act, 33 U.S.C. §1311(a), makes the “discharge of a pollutant” unlawful and subjects any person who does so to significant civil and even criminal penalties under §309. 33 U.S.C. §1319. The term “discharge of a pollutant” is broadly defined as “any addition of any pollutant to navigable waters from any point source.” Clean Water Act §502(12), 33 U.S.C. §1362(12). “Pollutant” is also broadly defined and includes sand, dredge spills, rocks and other materials. Id. Section 404 of the Clean Water Act authorizes the Army Corp of Engineers (ACOE) to issue permits allowing the discharge of dredged or fill materials into the “navigable waters” of the United States. “Navigable Waters” are further defined in the Act as “the waters of the United States.” 33 U.S.C. 1362(7).