Waters of the United States (WOTUS): Repealing and Revising the 2015 Clean Water Rule

October 23, 2019

Waters of the United States (WOTUS):

Repealing and Revising the 2015 Clean Water Rule

Background: What Is WOTUS?

Congress passed the Clean Water Act (CWA) to restore and

protect the quality of the nation’s surface waters (33 U.S.C.

§1251 et seq.). The statute protects “navigable waters,”

which it defines as “the waters of the United States,

including the territorial seas.” The CWA does not further

define the term waters of the United States (WOTUS).

Thus, the Army Corps of Engineers and U.S.

Environmental Protection Agency (EPA) have defined

WOTUS in their regulations. However, Congress’s intent as

to the meaning of WOTUS has been debated and litigated

for more than four decades.

WOTUS Regulations and Rapanos

In the 1980s, EPA and the Corps defined WOTUS to

include, among other things, all waters and wetlands the

use, degradation, or destruction of which could affect

interstate or foreign commerce. While the Supreme Court

never struck down this regulation, it held twice that the

agencies exceeded their CWA authority in interpreting and

applying the regulation.

The Supreme Court has disagreed on WOTUS’s scope. In a

2006 decision, Rapanos v. United States, a four-Justice

plurality (written by Justice Scalia) argued that WOTUS

encompasses “relatively permanent, standing or

continuously flowing bodies of water,” such as streams,

rivers, or lakes and wetlands that have a “continuous

surface connection” to waters subject to the CWA. Justice

Kennedy, by contrast, wrote a concurring opinion arguing

that WOTUS includes wetlands that have a “significant

nexus” to traditionally navigable waters. Justice Kennedy

elaborated that a significant nexus exists when the wetland,

either alone or in connection with similarly situated

properties, significantly impacts the chemical, physical, and

biological integrity of a traditionally navigable water.

After Rapanos, EPA and the Corps issued interpretive

guidance in 2008 in which they organized the CWA

jurisdictional analysis into three categories:

1.

2.

Waters and wetlands that are categorically

WOTUS, including traditionally navigable waters,

relatively permanent tributaries, wetlands adjacent to

traditionally navigable waters, and wetlands that abut

tributaries to such waters.

Waters and wetlands that may be deemed WOTUS

on a case-by-case basis upon a finding of a

“significant nexus” with traditionally navigable

waters. This category includes wetlands adjacent to

certain tributaries as well as tributaries that are not

relatively permanent—defined in the guidance as

intermittent streams that lack a continuous flow at least

seasonally and ephemeral streams that flow only in

response to precipitation.

3. Waters and wetlands that are categorically

excluded from WOTUS, including swales and certain

ditches.

The 2008 guidance elaborated on the criteria for wetlands

to be considered adjacent to traditionally navigable waters

and therefore fall into category one. Under the 2008

guidance, adjacency is established by (1) an unbroken

surface or shallow subsurface connection to regulated

waters; (2) physical separation from regulated waters by

man-made dikes or barriers, natural river berms, beach

dunes, and similar features; or (3) proximity to regulated

waters that supports an inference of ecological

interconnection.

EPA and the Corps acknowledged that their written

guidance did not provide the public or agency staff with the

information needed to ensure timely, predictable, and

consistent jurisdictional determinations. The agencies

further acknowledged that case-by-case significant nexus

determinations were resource and time-intensive. Diverse

stakeholders—including Members of Congress, states, the

regulated community, and non-governmental

organizations—requested a formal rulemaking to revise the

existing rules.

The 2015 Clean Water Rule

In 2015, EPA and the Corps issued the Clean Water Rule

(2015 Rule), which redefined WOTUS in the agencies’

regulations for the first time since the 1980s. (The 2008

changes following Rapanos came in agency guidance.) In

publishing the 2015 Rule, the agencies sought to reduce the

universe of waters subject to case-by-case significant nexus

analysis. The 2015 Rule retained aspects of the agencies’

2008 guidance, including a three-tiered jurisdictional

analysis, but it also incorporated new features. Among other

things, EPA and the Corps expanded waters that are

categorically WOTUS by broadening the definition of

tributaries to include intermittent and ephemeral waters that

contribute flow to certain other regulated waters and show

physical indicators of a bed, bank, and ordinary high water

mark. The agencies adopted numerical distance-based

criteria to determine when waters and wetlands are part of

WOTUS because they are adjacent to certain regulated

waters. For example, the 2015 Rule provides that waters

and wetlands within 100 feet of the ordinary high water

mark of certain other regulated waters are considered

WOTUS. While the Corps and EPA contended that their

primary intent of the 2015 Rule was to clarify (rather than

enlarge) regulatory jurisdiction, some stakeholders and

observers viewed it as an expansion of CWA jurisdiction.

https://crsreports.congress.gov

Waters of the United States (WOTUS):

Repealing and Revising the 2015 Clean Water Rule

Legal Challenges to the 2015 Rule

In 2015, a group of 31 states and other plaintiffs challenged

the 2015 Rule in federal courts across the country,

asserting, among other things, that the rule was

unconstitutional, that it exceeded the CWA’s statutory grant

of authority, and that the agencies had violated the

Administrative Procedure Act (APA) in promulgating it.

Between 2015 and 2019, several federal district courts

entered preliminary injunctions preventing the 2015 Rule

from going into effect in parts of the country. In 2019, two

federal district courts held that the agencies violated the

APA, and one of those courts held that the rule exceeded

the agencies’ CWA authority.

Other courts ruled against 2015 Rule challenges. In 2019,

two different federal district courts denied motions for

preliminary injunctions, allowing the 2015 Rule to go into

effect in some parts of the country. As a result of the

litigation, the 2015 Rule is enjoined in 27 states (shown in

teal), in effect in 22 states (blue), and subject to a motion

for clarification in one state (New Mexico), as Figure 1

shows.

Figure 1. Status of the 2015 Clean Water Rule

2015 Rule, the agencies are already applying the pre-2015

regulatory regime.)

The agencies gave several reasons for rescinding the 2015

Rule: (1) The rule misapplied prior Supreme Court

precedent; (2) the agencies failed to consider adequately

and to weigh appropriately the congressional policy cited in

CWA Section 101(b) to “recognize, preserve, and protect

the primary responsibilities and rights of States to prevent,

reduce, and eliminate pollution” and “to plan the

development and use … of land and water resources;” (3)

the rule improperly pressed the “outer limits” of Congress’s

constitutional power without a “clear indication” of

congressional intent to do so; and (4) the agencies did not

comply with the APA’s notice-and-comment requirements

in promulgating the rule.

Commentators debate the impact of repealing the 2015

Rule. EPA and the Corps assert that, while the pre-2015

regulations and guidance pose certain implementation

challenges, repealing the 2015 Rule will provide greater

regulatory certainty. However, critics of the repeal—

including environmental groups and several states—assert

that repealing the 2015 rule removes important

environmental protections and plan to file legal challenges.

Some observers believe these challenges could lead to

renewed uncertainty and a patchwork of different

regulations in different states.

Step Two Proposed Rule: Revising the

Definition of WOTUS

Sources: North Dakota v. EPA, 127 F. Supp. 3d 1047 (D.N.D. 2015);

Order, North Dakota v. EPA, No. 3:14-cv-59 (D.N.D. Sep. 9, 2018);

Motion for Clarification, North Dakota v. EPA, No. 3:15-cv-00059

(D.N.D. May 24, 2019); Georgia v. Wheeler, No. 2:15-cv-079 (S.D.

Ga. Aug. 21, 2019); Texas v. EPA, No. 3:15-cv-00162 (S.D. Tex. May

28, 2019).

Executive Order 13778

Describing the 2015 Rule as an example of federal

overreach, President Trump issued Executive Order 13778

on February 28, 2017, directing the agencies to review and

rescind or revise the rule and consider interpreting the term

navigable waters in a manner consistent with Justice

Scalia’s opinion in Rapanos (which described a

“continuous surface connection” test). The agencies are

complying with the executive order by (1) repealing the

2015 Rule and (2) redefining WOTUS in a separate

rulemaking. The proposed rules garnered significant public

comment, with each receiving over 600,000 comments.

Step One Rule: Repealing the 2015 Rule

On October 22, 2019, the agencies published a final Step

One Rule to rescind the 2015 Rule. The effective date of the

rule is 60 days from its publication in the Federal Register.

Once the final Step One Rule is effective, the agencies will

implement the pre-2015 regulations consistent with prior

agency guidance. (In states where courts have enjoined the

On February 14, 2019, the agencies published a proposed

Step Two Rule, which would substantively redefine

WOTUS. The agencies have not finalized the Step Two

Proposed Rule. EPA and the Corps stated that the Step Two

Proposed Rule is intended to implement the CWA’s

objectives of protecting and restoring the nation’s waters

while respecting state and tribal authority.

In the Step Two Proposed Rule, the agencies departed from

earlier WOTUS approaches. Among other changes, the

Step Two Proposed Rule would eliminate the category two,

case-by-case “significant nexus” standard, define WOTUS

to include six categories of waterbodies, and modify the

tributary and adjacent wetlands definitions. Overall, fewer

waters and wetlands would be subject to the CWA under

the Step Two Proposed Rule. For more information on the

Step Two Proposed Rule, see CRS Report R44585,

Evolution of the Meaning of “Waters of the United States”

in the Clean Water Act, by Stephen P. Mulligan.

Legislation in the 116th Congress

Debate over the CWA has largely stemmed from confusion

over the meaning Congress intended WOTUS to have.

Some Members have introduced legislation (H.R. 667, H.R.

2287, S. 376, and S. 2356) to repeal or nullify the 2015

Rule and amend the CWA to change the definition of

navigable waters. The language, as proposed in these bills,

would narrow the scope of waters protected by the CWA.

Laura Gatz, Analyst in Environmental Policy

Stephen P. Mulligan, Legislative Attorney

https://crsreports.congress.gov

IF11339

Waters of the United States (WOTUS):

Repealing and Revising the 2015 Clean Water Rule

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