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 “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.”

Want to continue reading?
Become a Free ALM Digital Reader.

Once you are an ALM digital member, you’ll receive:

  • Unlimited access to GlobeSt and other free ALM publications
  • Access to 15 years of GlobeSt archives
  • Your choice of GlobeSt digital newsletters and over 70 others from popular sister publications
  • 1 free article* every 30 days across the ALM subscription network
  • Exclusive discounts on ALM events and publications

*May exclude premium content
Already have an account?


© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.

Kelsi Maree Borland

Kelsi Maree Borland is a freelance journalist and magazine writer based in Los Angeles, California. For more than 5 years, she has extensively reported on the commercial real estate industry, covering major deals across all commercial asset classes, investment strategy and capital markets trends, market commentary, economic trends and new technologies disrupting and revolutionizing the industry. Her work appears daily on and regularly in Real Estate Forum Magazine. As a magazine writer, she covers lifestyle and travel trends. Her work has appeared in Angeleno, Los Angeles Magazine, Travel and Leisure and more.

More from this author


Join GlobeSt

Don't miss crucial news and insights you need to make informed commercial real estate decisions. Join now!

  • Free unlimited access to's trusted and independent team of experts who provide commercial real estate owners, investors, developers, brokers and finance professionals with comprehensive coverage, analysis and best practices necessary to innovate and build business.
  • Exclusive discounts on ALM and GlobeSt events.
  • Access to other award-winning ALM websites including and

Already have an account? Sign In Now
Join GlobeSt

Copyright © 2024 ALM Global, LLC. All Rights Reserved.