Overview of the Army Corps and EPA Rule to Define “Waters of the United States” (WOTUS) and Recent Developments

Updated October 22, 2018

Overview of the Army Corps and EPA Rule to Define “Waters

of the United States” (WOTUS) and Recent Developments

Overview: What Is “WOTUS”?

In June 2015, the Army Corps of Engineers and

Environmental Protection Agency (EPA) published the

Clean Water—or “Waters of the United States”—final rule

(80 Federal Register 37053), which revised regulations

defining the scope of waters protected and regulated under

the Clean Water Act (CWA). Discharges to waters,

including wetlands, require a CWA permit (e.g., pollutants

from factories or sewage treatment plants and dredging and

filling of spoil material through mining or excavation). The

legal and policy questions regarding the geographic limit of

CWA jurisdiction and the consequences of restricting or

expanding that limit have challenged regulators, developers,

landowners, and policymakers for decades.

Background of the Rule

The CWA protects “navigable waters,” which it defines as

“the waters of the United States, including the territorial

seas.” Waters need not be truly navigable to be subject to

CWA jurisdiction. The act’s single definition of “navigable

waters” applies to the entire law, including Section 301 (the

federal prohibition on pollutant discharges except in

compliance with the act), Sections 402 and 404 (permit

requirements), and Section 309 (enforcement). The CWA

gave the Corps and EPA the authority to define the term

waters of the United States in regulations, which they have

done several times, most recently in 1986, 1988, and 2015.

The Corps and EPA proposed revisions to the regulations in

2014 in light of two Supreme Court rulings (Solid Waste

Agency of Northern Cook County v. U.S. Army Corps of

Engineers, 531 U.S. 159 (2001); and Rapanos v. United

States, 547 U.S. 716 (2006)). Both interpreted the

regulatory scope of the CWA more narrowly than

previously, but they created uncertainty about the

appropriate scope of waters that are protected by the CWA.

The Court’s decision in Rapanos, split 4-1-4, yielded three

different opinions. The four-Justice plurality decision,

written by Justice Scalia, said that the dredge and fill

provisions in the CWA apply only to wetlands connected to

relatively permanent bodies of water (streams, rivers, lakes)

by a continuous surface connection. Justice Kennedy,

writing alone, demanded a “significant nexus” between a

wetland and a traditional navigable water, using a case-bycase test that considers ecological connection. Justice

Stevens, for the four dissenters, would have upheld the

existing reach of Corps/EPA regulations.

In light of those rulings, the agencies issued guidance in

2003 and 2008 to identify categories of waters that

remained jurisdictional or not jurisdictional and required a

case-specific analysis to determine whether jurisdiction

applies. The guidance documents did not resolve all

interpretive questions, and diverse stakeholders requested a

formal rulemaking to revise the existing rules.

What Is in the Clean Water Rule?

The 2015 final rule retained much of the structure of the

agencies’ prior definition of WOTUS. It focused on

clarifying the regulatory status of waters with ambiguous

jurisdictional status following the Supreme Court’s rulings,

including isolated waters and streams that flow only part of

the year and nearby wetlands. Per the final rule’s preamble,

the Corps and EPA used Justice Kennedy’s significant

nexus standard in developing the rule, as well as the

plurality standard in establishing boundaries on the scope of

jurisdiction. The final rule identified categories of waters

that are and are not jurisdictional, as well as waters that

require a case-specific evaluation. Under the final rule:

 Tributaries to the nation’s traditional navigable waters,

interstate waters, the territorial seas, or impoundments

of these waters would be jurisdictional per se. All of

these waters were jurisdictional under pre-2015 rules,

but tributary was newly defined in the final rule.

 Waters—including wetlands, ponds, lakes, and similar

waters—that are adjacent to traditional navigable

waters, interstate waters, the territorial seas,

jurisdictional tributaries, or impoundments of these

waters would be jurisdictional by the final rule. The

final rule also put some boundaries on “adjacency.”

 Some types of waters—but fewer than under practices

used prior to the 2015 rule—would remain subject to a

case-specific evaluation of whether or not they meet the

standards for federal jurisdiction.

 Certain waters would be excluded from CWA

jurisdiction. Some were restated exclusions under pre2015 rules (e.g., prior converted cropland); some have

been excluded by practice and would be expressly

excluded by rule for the first time (e.g., groundwater and

some ditches). Some were new in the final rule (e.g.,

stormwater management systems). The rule did not

affect existing statutory exclusions: exemptions for

existing “normal farming, silviculture, and ranching

activities” and for maintenance of drainage ditches

(CWA §404(f)), as well as for agricultural stormwater

discharges and irrigation return flows (CWA §402(l)).

Issues and Controversy

Much of the controversy since the Supreme Court’s rulings

has centered on instances that have required CWA permit

applicants to seek a time-consuming, case-specific analysis

to determine if CWA jurisdiction applies to their activity.

The Corps and EPA’s stated intention in proposing the rule

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Overview of the Army Corps and EPA Rule to Define “Waters of the United States” (WOTUS) and Recent Developments

was to clarify questions of CWA jurisdiction in view of the

rulings while reflecting their scientific and technical

expertise. Specifically, they sought to articulate categories

of waters that are and are not protected by the CWA, thus

limiting the water types that require case-specific analysis.

Industries that are the primary applicants for CWA permits

and agriculture groups raised concerns over how broadly

the proposed rule would be interpreted. They contended

that the proposed definitions were ambiguous and would

enable agencies to assert broader CWA jurisdiction than is

consistent with law and science. The final rule added and

defined key terms, such as tributary and significant nexus,

and modified the proposal in an effort to improve clarity.

Some local governments that own and maintain public

infrastructure also criticized the proposal. They argued that

it could increase the number of locally owned ditches under

federal jurisdiction because it would define some ditches as

WOTUS under certain conditions. Corps and EPA officials

asserted that the proposed exclusion of most ditches would

decrease federal jurisdiction, but the issue remained

controversial. The final rule expressly excluded stormwater

management systems and structures from jurisdiction.

Many states expressed support for a rule to clarify the scope

of CWA jurisdiction, but there was no consensus on the

proposed or final rule. Some were largely supportive; others

believed the agencies did not adequately consult with states.

Environmental groups supported the agencies’ efforts to

protect waters and reduce uncertainty. Still, some argued

that the proposal should be strengthened—for example, by

designating additional categories of waters and wetlands

(e.g., prairie potholes) as categorically jurisdictional. The

final rule did not do so. Instead, such waters would require

case-specific analysis to determine if jurisdiction applies.

Corps and EPA officials under the Obama Administration

defended the proposed rule but acknowledged that it raised

questions they believed the final rule clarified. In their

view, the final rule did not protect any new types of waters

that were not protected historically, did not exceed the

CWA’s coverage, and would not enlarge jurisdiction

beyond what is consistent with the Supreme Court’s rulings

and scientific understanding of significant connections

between small and ephemeral streams and downstream

waters. The agencies asserted that they had addressed

criticisms of the proposed rule by defining tributaries more

clearly, better defining how protected waters are significant,

and preserving agricultural exclusions and exemptions.

What Is the Current Status?

Issuance of the final rule did not diminish concerns. Many

groups contended that the rule did not provide needed

clarity, that its expansive definitions made it difficult to

identify any waters that would fall outside the boundary

distances established in the rule, and that the threshold for

determining “significant nexus” was set so low that

virtually any water could be found to be jurisdictional. The

final rule would impose costs, critics said, but have little or

no environmental benefit. Environmental groups were

supportive but also faulted parts of the final rule.

Industry groups, more than half the states, and several

environmental groups filed lawsuits challenging the rule in

multiple federal district and appeals courts. An appeals

court ordered a nationwide stay of the rule in October 2015

and later ruled that it had jurisdiction to hear consolidated

challenges to the rule. In January 2018, the Supreme Court

unanimously held that federal district courts, rather than

appellate courts, are the proper forum for filing challenges

to the rule. Accordingly, on February 28, 2018, the appeals

court vacated its nationwide stay. However, in anticipation

of a possible lift of the stay, the Corps and EPA had

proposed a rule that added an “applicability date” to the

2015 rule—delaying implementation until February 2020—

which they finalized on February 6, 2018. Environmental

groups and states filed lawsuits challenging the rule, and on

August 16, 2018, a district court issued a nationwide

injunction of the rule. As a result, the 2015 Clean Water

Rule is now in effect in 22 states. It will remain in effect

unless, for example, a district court issues a nationwide stay

or the Administration finalizes its proposed rule to rescind

the 2015 rule (see below). The other 28 states are covered

by three district court injunctions issued on the 2015 rule.

The Administration has also taken steps to rescind and

revise the 2015 rule. In February 2017, President Trump

issued an executive order directing the Corps and EPA to

review and rescind or revise the rule and to consider

interpreting the term navigable waters as defined in the

CWA in a manner consistent with Justice Scalia’s opinion

in Rapanos. In July 2017, the agencies published a

proposed rule that would “initiate the first step in a

comprehensive, two-step process intended to review and

revise the definition of ‘waters of the United States’

consistent with the Executive Order.” The first step

proposes to rescind the 2015 rule and re-codify the

regulatory definition of WOTUS as it existed prior to the

rule. In July 2018, the agencies published a supplemental

notice of proposed rulemaking to solicit comment on

additional considerations supporting the agencies’ proposed

repeal. According to EPA, the agencies are continuing to

review comments on the step one rule and have held

listening sessions and solicited recommendations to develop

a proposed step two rule. Observers largely agree that the

order and ensuing agency actions indicate a move toward

narrowing the CWA’s jurisdictional scope.

Actions in the 115th Congress

Among other WOTUS measures, H.R. 1105 would repeal

the rule, while H.R. 1261 would narrow the definition of

waters subject to CWA jurisdiction. Members in the House

and Senate have proposed resolutions expressing the sense

that the rule should be withdrawn or vacated (H.Res. 152

and S.Res. 12). Two House-passed appropriations bills

(H.R. 3219 and H.R. 3354) contain provisions that would

authorize withdrawal of the rule “without regard to any

provision of statute or regulation that establishes a

requirement for such withdrawal” (e.g., the Administrative

Procedure Act). The House-passed version of the farm bill

(H.R. 2) includes an amendment to repeal the rule.

Laura Gatz, Analyst in Environmental Policy

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Overview of the Army Corps and EPA Rule to Define “Waters of the United States” (WOTUS) and Recent Developments

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