The Clean Water Act (CWA) asserts federal control over “navigable waters” of the United States. The law mandates general attainment goals for states regarding surface water quality planning and management, and it establishes water quality standards to regulate discharges of pollutants to the nation’s navigable waters. President Donald Trump signed an executive order on February 28, 2017, to direct federal agencies to roll back and replace the Obama Administration’s 2015 Clean Water Rule –also known as the “Waters of the United States” or WOTUS Rule. According to the United States Environmental Protection Agency (USEPA), this executive order was issued “to ensure that the nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the States under the Constitution.”
To meet the objectives of the executive order, federal agencies will need to re-codify the definition of WOTUS by revising the Code of Federal Regulations (CFR). The lengthy rulemaking process will also include a public notice and comment period. Although the popular press and politicians often give the impression that sweeping changes to our environmental laws and regulations can be enacted with the stroke of a pen, the process to re-codify the definition of WOTUS is likely to be a long process with numerous legal hurdles.
The definition of WOTUS has been modified significantly since the CWA was enacted. The timeline below outlines some of the more significant changes to the regulatory definition of WOTUS as well as several relevant rulings from the U.S. Supreme Court and U.S. Court of Appeals for the Sixth Circuit.
Regulatory Definition of “Waters of the United States” (WOTUS) under the Clean Water Act (CWA) – Currently Applicable Definition in 2018 (according to U.S. Supreme Court decisions)
40 CFR 230.3(s) The term waters of the United States means:
- All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
- All interstate waters including interstate wetlands;
- All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
- Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
- From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
- Which are used or could be used for industrial purposes by industries in interstate commerce;
- All impoundments of waters otherwise defined as waters of the United States under this definition;
- Tributaries of waters identified in paragraphs (s)(1) through (4) of this section;
- The territorial sea;
- Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.
Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the CWA, the final authority regarding CWA jurisdiction remains with USEPA.
U.S. Supreme Court Rulings
U.S. Supreme Court decisions in 2001 and 2006 concluded that USEPA and United States Army Corps of Engineers (USACE) had adopted an unduly broad interpretation of the scope of their federal regulatory authority as it pertains to the enforcement of the WOTUS rule under CWA.
Revised Regulatory Definition of “Waters of the United States” under the CWA (also known as the 2015 Clean Water Rule [CWR])
The 2015 CWR became effective on August 28, 2015. On June 29, 2015, USEPA and USACE published the final rule in the Federal Register defining the revised scope of waters protected under the CWA.
The 2015 CWR was stayed nationwide by the U.S. Court of Appeals for the Sixth Circuit
On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay against the enforcement of the 2015 CWR defining the scope of the “waters of the United States” subject to federal regulatory jurisdiction under the CWA. In response to this stay, USEPA and USACE resumed nationwide use of the agencies’ prior regulations (i.e., pre-2015 regulatory definition) defining the term “waters of the United States.”
U.S. Supreme Court Ruling
USEPA and USACE Issue Applicability Date for WOTUS Rule (Two-Year Interim Period)
The U.S. Supreme Court ruled unanimously that challenges to USEPA/USACE’s 2015 CWR must be heard first in U.S. district courts, not federal appeals courts. On January 31, 2018, the agencies signed a final rule adding an applicability date to the 2015 Rule. With this final rule, the agencies intend to maintain the legal status quo of pre-2015 implementation, thus providing continuity and certainty for regulated entities, states and tribes, and the public while the agencies continue to consider possible revisions to the 2015 Rule. Specifically, the new rule sets the applicability date for the 2015 CWR two years after the final applicability rule is published in the Federal Register.
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