The federal governmentredefined Waters of the United States recently—a change that willhave an significant impact on developers. However, the change isnot the first. The definition of Waters of the US has been oftencontested, with many wondering if the regulation should come fromthe federal or state level.

"In many ways, this most recent effort to redefine Waters of theUnited States is only another plot twist in the long-running sagato establish the scope of the federal government's jurisdictionover wetlands and other water features," ScottBirkey, land use and natural resources partner atCox, Castle & Nicholson, tells GlobeSt.com."Since the inception of the Clean Water Act permitting program in1973, the definition of Waters of the United States has been hotlycontested.  After some initial legal skirmishes, thefederal government established a set of regulations in 1986 thatreflected 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. "Thingsgot even more interesting as the United States Supreme Court beganconsidering the question of whether the federal government wasoverreaching in its regulation of wetlands and other waterfeatures.  At the center of that judicial debate was thedefinition of Waters of the United States. The Supreme Court'slatest decision on the issue—a case called Rapanos v. United Statesdecided in 2008—staked out three different perspectives on theissue," says Birkey. "The late Justice Scalia was thearchitect of the opinion that drew the most support from thecourt.  In his view, Waters of the United States should beunderstood to mean relatively permanent, standing or continuouslyflowing bodies of waters—such as streams, oceans, rivers, andlakes—or waters that abut those bodies of water."