Originally posted April 2014 following release of proposed rule in March 2014.
Updated and reposted 6/30/17 following announcement on June 27, 2017, by Trump Administration to repeal and replace the rule.
For an audio take on the Clean Water Rule, have a listen to Virginia Water Radio Episode 269 (6-8-15), available at http://www.virginiawaterradio.org/2015/06/episode-269-6-8-15-what-are-waters-of.html.
This post summarizes developments regarding a rule defining the “Waters of the United States” (also known during the Obama Administration as the “Clean Water Rule”) published by the Obama Administration in May 2015, including subsequent litigation and the proposal announced in June 2017 by the Trump Administration to repeal and replace the rule.
Overview of Legal Developments
On May 27, 2015, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers announced a final “Clean Water Rule,” by which the agencies seek to clarify what water bodies are considered “waters of the United States” and therefore fall under the jurisdiction of the federal Clean Water Act (CWA). The proposed rule had been published in the Federal Register on April 21, 2014 (link here). The agencies received over one million comments on the proposed rule.
The May 27 final rule went through a 60-day public-comment period following its publication in the Federal Register, and it went into effect on August 28, 2015. On that day, however, the U.S. District Court for the District of North Dakota (Southeastern Division) stayed the regulation, pending the outcome of a lawsuit by challenging the regulation that was filed on June 29, 2015, by the states of Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, North Dakota, South Dakota, and Wyoming, along with the New Mexico Environment Department and the New Mexico State Engineer. Then, on October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit (located in Cincinnati, Ohio; Web site: http://www.ca6.uscourts.gov/internet/default.html) extended the stay nationwide, as part of a lawsuit against the regulation filed by 18 other states: Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, West Virginia, and Wisconsin. The Appeals Court majority wrote that they granted the stay because the petitioners (those filing lawsuit) had “demonstrated a substantial possibility of success on their claims.” The petitioners claim that the new regulation’s distance limitations applied to tributary waters are at odds with the U.S. Supreme Court’s 2006 Rapanos decision, and that the Corps of Engineers and U.S. EPA did not include those distance limitations in its proposed rule, so that the public was not given an adequate opportunity to comment on that aspect of the regulation prior to publication of the final rule in May 2015. The Circuit Court majority also found that “the sheer breadth of the ripple effects caused by the [new regulation’s] definitional changes” called for maintaining the status quo while litigation runs its course.
Altogether, as of October 2015 nine cases filed against the Clean Water Rule were pending in seven federal districts.
In January 2017, the U.S. Supreme Court agreed to hear the case of National Association of Manufacturers v. Department of Defense. This case doesn’t involve the merits of the Clean Water Rule but rather questions the proper federal court venue for challenging the rule.
On June 27, 2017, the Trump Administration announced a proposed repeal of the rule, with a potential revised rule to follow at a future date. The repeal would reinstate the jurisdictional rule in place in 1986 and a guidance issued in 2008, following the Supreme Court’s Rapanos decision (see below). Information on the proposed repeal is available online at https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-0001. Following official posting on July 27, 2017, the proposal initially had a 30-day public comment period through August 27, but the comment period was extended until September 27.
On November 16, 2017, the EPA and the Corps of Engineers announced a proposal to delay the implementation of the rule for two years (beginning with publication in the Federal Register of the action announced on November 16). Source: EPA and the Army Propose to Amend the Effective Date of the 2015 Rule Defining “Waters of the United States,” U.S. EPA News Release, 11/16/17.
Overview of the Content of the Rule
The approximately 300-page rule follows U.S. Supreme Court decisions in 2001 (in Solid Waste Agency of Northern Cook County [Illinois] v. United States Army Corps of Engineers et al.; click here for PDF of decision) that eliminated migratory-bird use as a sufficient stand-alone factor for isolated waters to fall under CWA jurisdiction; and in 2006 (Rapanos v. U.S. and Carabell v. U.S.; click here for PDF of decision), in which the High Court issued three different interpretations of how to determine CWA jurisdiction. The March 2014 proposed rule (p. 2) had stated that those decisions “resulted in the agencies evaluating the jurisdiction of waters on a case-specific basis are more frequently than is best for clear and efficient implementation of the CWA.”
The main goal of the CWA, first passed in 1972, is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” It established programs to regulate discharge of pollutants, filling of wetlands, oil spills, and other activities. The Act states that it applies to “navigable waters,” defined as “waters of the United States, including the territorial seas”; Section 404 of the Act includes wetlands in the waters where dredging and filling activities are to be regulated. In 1986, the Army Corps of Engineers and the U.S. EPA published regulations that applied the Act to several kinds of waters that may affect traditional navigable waters, including tributaries and adjacent wetlands, and that concept has been upheld by the U.S. Supreme Court. But many questions and legal challenges have been raised over implementation of that 1986 definition, and the U.S. Supreme Court rulings in 2001 and 2006 generated even more questions and inconsistency of implementation.
Here are some major elements of the rule, from the Executive Summary, pp. 7-27, of the document as published online on May 27, 2015, at http://www2.epa.gov/sites/production/files/2015-06/documents/preamble_rule_web_version.pdf.
The rule identifies categories of jurisdictional waters, grouped within “waters that are jurisdictional in all instances, waters that are excluded from jurisdiction, and a narrow category of waters subject to case-specific analysis to determine whether they are jurisdictional.” [p. 16, “Major Rule Provisions]
Jurisdictional waters in all instances (“jurisdictional by rule”)
1. Traditional navigable waters
2. Interstate waters
3. Territorial seas
4. Impoundments of jurisdictional waters
5. Tributaries
6. Adjacent waters.
The rule defines “tributaries” and “adjacent waters” [see pp. 18-19], categories which have been subject of much debate and litigation in the past. The rule identifies certain waters that are excluded from the definition of “tributaries,” including ditches or gullies that flow only after precipitation and “ephemeral features that do not have a bed and banks and ordinary high water mark” [pp. 19-20]. The rule defines “adjacent waters” “based on their hydrological and ecological connections to, and interactions with,” traditional navigable waters [p. 20]. The rule aims to establish a “bright line” for where waters cease to be “adjacent,” although states may still include such waters in state protections.
Case-specific jurisdictional waters (subject to a specific analysis to determine if a “specific nexus” to a by-rule jurisdictional water exists):
7. Five specific categories of waters in specific regions (prairie potholes, pocosins, California vernal pools, Carolina and Delmarva bays, and Texas coastal prairie wetlands) [p. 22];
8. Waters within the 100-year floodplain of a traditional navigable water, interstate water, or territorial sea; c) waters within 4000 feet of the high-tide line or the ordinary high-water mark of a traditional navigable water, interstate water, seas, impoundments, or covered tributary [p. 23].
Identified exclusions [pp. 24-25; “existing” means the exclusion was already in existing regulations; “new” means the exclusion has been added in the new Clean Water Rule as “by rule” exclusions]
1. Prior-converted cropland (existing);
2. Waste-treatment systems (existing);
3. Waters and features previously identified as generally exempt, such as certain ditches not in or draining wetlands, and ditches with ephemeral flow that are not a relocated tributary, excavated in a tributary, or drain wetlands (new); 4. Groundwater (new);
5. Erosional features (new);
6. Waters that the agencies state they did not intend to cover but which public comments about the proposed rule said might end up being included unless explicitly identified, including stormwater-control features (specifically constructed for stormwater conveyance), cooling ponds created in dry land [p. 25].
The rule notes that states and tribes may establish protections for waters not covered by the CWA, such as groundwater and certain wetlands [p. 26]. “Nothing in this rule limits or impedes any existing or future state or tribal efforts to further protect their waters.”
SOURCES FOR THIS POST AND FOR MORE INFORMATION
News Items (listed in chronological order, with most recent listed first)
Trump admin moves to repeal WOTUS, E&E News PM, 6/27/17. (E&E News PM is a product of E&E Publishing, http://www.eenews.net/; a subscription is required for online access to E&E products; trial subscriptions may be available.)
Supreme Court to hear case concerning Obama water rule, The Hill, 1/13/17. [“The Supreme Court agreed Friday [1/13/17] to hear a case over a specific issue arising from President Obama’s Clean Water Rule — the fight over the proper federal court venue for challenging the rule. The case, National Association of Manufacturers v. Department of Defense, does not concern the merits of the 2015 regulation, under which the Environmental Protection Agency (EPA) and Army Corps of Engineers asserted jurisdiction over small waterways like ponds and streams. It is also known as the Waters of the United States rule. The dispute may soon become moot, since President-elect Donald Trump, who takes office in a week, has pledged to repeal the regulation at issue.”]
Wetland Studies and Solutions, Inc. (Gainesville, Va.), Waters of the U.S.: Back to Basics (for now), Field Notes, 10/14/15.
Greenwire, Panel rules against consolidating challenges to WOTUS, 10/13/15. (Greenwire is a product of E&E Publishing, http://www.eenews.net/; a subscription is required for online access to E&E products; trial subscriptions may be available.)
Jonathan Adler, Sixth Circuit puts controversial ‘waters of the United States’ (WOTUS) rule on hold, Washington Post, 10/9/15.
Greenwire, Appeals court halts WOTUS rule nationwide, 10/9/15.
Jonathan Adler, North Dakota district court blocks controversial ‘Waters of the United States’ rule (UPDATED), Washington Post, 8/28/15.
Richmond Times-Dispatch, Water rule’s impact on Virginia may be minimal, 8/28/15
Capital Press [Salem, Ore.], Army Corps memos disparage EPA over WOTUS, 8/3/15.
Greenwire, Obama admin OK’d controversial rule over experts’ objections, 7/27/15.
Greenwire, Industry, enviros alike wary of WOTUS’s mining provisions, 6/2/15.
Wetland Studies and Solutions (Gainesville, Va.,) “EPA & COE Redefine Which Wetlands and Streams are Federally Regulated,” Field Notes, 6/2/15.
PBS NewsHour, “Why farmers are concerned about EPA’s new rules on protected water,” 5/29/15, 7 min./4 sec. video, online at http://www.pbs.org/newshour/bb/farmers-concerned-epas-new-rules-protected-water/.
New York Times, Obama Announces New Rule Limiting Water Pollution, 5/27/15.
U.S. EPA, Clean Water Rule Protects Streams and Wetlands Critical to Public Health, Communities, and Economy, News Release, 5/27/15. (Direct link no longer functoinal as of 6/30/17.)
U.S. EPA, EPA and Army Corps of Engineers Clarify Protection for Nation’s Streams and Wetlands: Agriculture’s Exemptions and Exclusions from Clean Water Act Expanded by Proposal, News Release, 3/25/14. (Direct link no longer functional as of 6/30/17.)
Agency Web Sites
U.S. EPA, “Clean Water Rule” Web site, https://www.epa.gov/wotus-rule.
U.S. EPA, “Summary of the Clean Water Act,” online at http://www2.epa.gov/laws-regulations/summary-clean-water-act.
Other Sources
Zygmunt J. B. Platter et al., Environmental Law and Policy: Nature, Law, and Society, 2nd ed., West Publishing Co., St. Paul, Minn., 1998.
Cartoon by George Wills of Blacksburg, Va. (https://www.etsy.com/people/BlacksburgArt), that accompanied an article in the January 2007 issue of Virginia Water Central Newsletter (the newsletter of the Virginia Water Resources Research Center) on the 2006 Rapanos decision by the U.S. Supreme Court. Virginia Water Central Newsletter is available online at http://www.vwrrc.vt.edu/water-central-news/.
Virginia Water Central News Grouper 
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