Defining Waters of the United States / Clean Water Rule

The Environmental Policy Initiative is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following

Why it Matters

This rule defines the streams and wetlands that are protected by the Clean Water Act. A narrow definition would leave wetlands and intermittent streams vulnerable to pollution from things like concentrated animal feedlots (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 January 22, 2018 the Supreme Court ruled  that challenges to the Obama-era Clean Water Rule (finalized in 2015) must be heard in district courts, rather than appeals courts. It is unclear what effect this has on an October, 2015 hold the 6th Circuit court put on the 2015 rule.

On November 16, 2017 EPA proposed to delay the effective date of the 2015 Obama administration rule for two years after “the date of final action on this proposal,” which EPA anticipates will be early 2018. This would delay the 2015 rule effective date to 2020.  

In July, 2017 EPA published a proposal to rescind the Obama-era rule defining which US water bodies are protected. EPA has not proposed a replacement rule.

History

On January 9, 2001, the Supreme Court issued an opinion in Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers, No. 99-1178. SWANCC had sued the Army Corps for not allowing it to discharge waste into a wetland. The Court agreed that “navigable waters” covered by the Clean Water Act did not extend to isolated wetlands but only included navigable rivers, their tributaries, and adjacent wetlands. This upset the common understanding of the scope of the Clean Water Act.

On June 19, 2006, the Supreme Court further muddied the waters in United States v. RapanosNos. 04-1034 AND 04-1384. There, the federal government initiated an enforcement action against a real estate developer for filling in wetlands without a permit. Four justices said that Clean Water Act jurisdiction extends only to “relatively permanent, standing or continuously flowing bodies of water” connected to navigable rivers, and connected wetlands. Justice Kennedy joined these four justices in declining to enforce the Clean Water Act against the developer, but he would have extended Clean Water Act protection for any wetland with a “significant” nexus to navigable waters. Without a majority for either test, Clean Water Act coverage was unclear.

A EPA and USACE published a final new Clean Water Rule on June 29, 2015. This rule defines which wetlands and streams are subject to protection under the Clean Water Act. It was intended to take effect on August 28, 2015. 

Over the next two days, 27 states sued EPA in four federal courts (Houston, Columbus, Bismarck, and Savannah). Challengers eventually brought actions in eight federal courts of appeals and 18 federal district courts.

On October 9, 2015 the Sixth Circuit put a nationwide hold on the rule.

On February 22, 2016 the Sixth Circuit held that the Clean Water Rule challenge must be heard in the appeals courts and not in federal district courts. Each judge on the 3-judge panel wrote a separate opinion.

On January 13, 2017 the Supreme Court agreed to hear the question of which federal court should hear challenges to the Clean Water Rule.

Trump Era

On March 6, 2017 EPA and USACE published their intent to “review and rescind or revise” the Clean Water Rule. On March 9, 2017 EPA asked the Supreme Court to suspend the case while the Administration reviews the rule.

The Supreme Court denied EPA’s request on April 3, 2017, meaning the case would proceed to determine where Clean Water Act challenges should be heard.

On June 27, 2017 EPA and USACE proposed to rescind the Clean Water Rule and revert to the uncertainty that reigned before this rule was finalized. They propose to come up with a new rule at a later date.

In July 2017 EPA and USACE published the proposal to rescind the rule in the Federal Register, with a comment period which ended on 8/28/17, but was extended to 9/27/17.

On November 16, 2017 EPA proposed to delay the effective date of the 2015 rule for two years after “the date of final action on this proposal.”  This would likely push the effective date to 2020. Without a delay, the Obama-era rule could be effective in most states

On January 22, 2018 the Supreme Court ruled  that challenges to the Obama-era Clean Water Rule (finalized in 2015) must be heard in district courts, rather than appeals courts. It is unclear what effect this has on an October, 2015 hold the 6th Circuit court put on the 2015 rule. However, it could mean that the 6th Circuit’s stay of the rule cannot stand and thus that the rule is in effect in all but 13 states that are under a separate hold from a North Dakota district court.

For more information

For more information on the this rule and how to comment on this rule see SaveEPA’s WOTUS page as well as their page on the proposed two year delay.

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