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 February 6, 2018 EPA finalized a delay of the effective date of the 2015 Obama administration rule for two years, to February 6, 2020, spurring legal challenges.

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 construct a landfill in an area with a variety of ponds and wetlands that were not connected to navigable waters. The Court agreed that the definition of “navigable waters” for the purpose of the Clean Water Act did not extend to isolated wetlands but only included navigable rivers, their tributaries, and adjacent wetlands.

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. Courts have generally applied both tests, predominantly relying on Justice Kennedy’s “significant nexus” approach.

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 to be based on Justice Scalia’s opinion in Rapanos with jurisdiction only over “relatively permanent, standing or continuously flowing bodies of water” connected to navigable rivers, and connected wetlands.

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 stay 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 stay from a North Dakota district court.

On February 6, 2018 EPA finalized a rule that delays the effective date of the 2015 Obama administration rule for two years, to February 6, 2020. That same day New York Attorney General Schneiderman led a multi-state lawsuit against EPA’s two year delay, and two coalitions of environmental groups sued EPA over the delay as well. The states’ lawsuit was filed in U.S. District Court for the Southern District of New York, case no. 1:18-cv-1030. One of the environmental groups’ lawsuits was also filed in the Southern District of New York, and the other was filed in the US District Court for the District of South Carolina, Charleston Division.

On February 9, 2018 the American Farm Bureau asked a federal District Court in Texas to issue a nationwide stay on the 2015 WOTUS rule.

On February 14, 2018 another coalition of environmental groups notified EPA it will sue over the WOTUS delays if their concerns are not addressed within 60 days.

On February 28, 2018 the Sixth Circuit lifted its 2015 stay of the rule. The EPA two year delay, however, is still in effect.

On March 30, 2018 Pruitt signed a memo making himself the sole authority over WOTUS designations, revoking the authority of regional administrators. EPA has long had the jurisdictional authority to step in and take over the determination process from the Army Corps in “special cases”.

On May 1, 2018 the U.S. District Court for the District of North Dakota ruled that the Trump administration’s request to delay litigation of a lawsuit initiated by 13 states opposing WOTUS when the rule was published in 2015, until February 2019 was unwarranted, and litigation will continue.

On May 29, 2018, Judge Oetken in the U.S. District Court for the Southern District of New York denied requests by EPA to transfer two cases challenging the rule that delays implementation of the Clean Water Rule. The EPA requested transfer of these cases to the U.S. District Court for the Southern District of Texas where there are other ongoing cases challenging the Clean Water Rule. Judge Oetken found that there were different legal questions in the cases: the cases in New York challenge the validity of the delay rule and not the substance of the Clean Water Rule; whereas, the cases in Texas challenge the merits of the rule itself.

On June 11, 2018, Judge Wood of U.S. District Court for the Southern District of Georgia granted an injunction and halted the Clean Water Rule from taking effect in Georgia, Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, Utah, West Virginia, Wisconsin and Kentucky. The rule is now halted in 24 states because the injunction granted by the U.S. District Court for the District of North Dakota remains in effect.

On June 13, 2018, the Waterkeeper Alliance and other conservation groups filed a lawsuit  in the U.S. District Court for the Northern District of California challenging both the delay rule and the Clean Water Rule itself for not being protective enough of the nation’s waters.

On June 15, 2018, the EPA sent its new proposed rule on the definition of waters of the U.S. to the White House Office of Management and Budget for review. This is usually the final step before proposed rule is published in the Federal Register and open for comment.

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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