Defining Waters of the United States / Clean Water Rule

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule please email us. 

Why it Matters

This rule defines which streams and wetlands are protected by the Clean Water Act. A narrow definition would leave many wetlands and intermittent streams vulnerable to pollution from sources like concentrated animal feeding operations (CAFOs), industrial facilities, and urban stormwater. It would also constrain  pollution prevention efforts by the Environmental Protection Agency (EPA) and the Army Corps of Engineers (USACE), which permits work affecting wetlands.

Current Status

On June 29, 2018, the EPA and Army Corps issued a supplemental notice of proposed rulemaking to the July 2017 proposal to repeal the 2015 Clean Water Rule, defining “waters of the United States”. The supplemental notice clarifies that the agencies propose to permanently repeal the entire Clean Water Rule and put the pre-2015 regulations back in place while they finalize a new definition of “waters of the United States.” EPA and the Department of Army have opened a comment period to seek additional comments on the decision to repeal the Clean Water Rule and restore pre-2015 regulations as well as the legal basis for the Clean Water Rule. The comment period opened on July 12, 2018 and ended on August 13, 2018.

On August 16, 2018, the U.S. District Court for the District of South Carolina enjoined the delay of the Clean Water Rule implementation for failure to comply with the Administrative Procedure Act. This decision means that the Clean Water Rule is in effect in 26 states where federal district court judges have not stayed it.

On September 12, 2018, the U.S. District Court for the Southern District of Texas enjoined the implementation of the Clean Water Rule in Texas, Louisiana, and Mississippi to limit the application of the rule after the ruling by the U.S. District Court for the District of South Carolina in August.

Click here learn more about the history of this rule and actions that have been taken on it by the Trump Administration.

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