Wading Into the “Waters of the United States”

Legal Sidebari

Wading Into the “Waters of the United States”

December 28, 2018

The Trump Administration recently unveiled a proposed rule that would redefine the jurisdictional reach

of the Clean Water Act. The principal federal law restricting pollution of the nation’s surface waters, the

Clean Water Act prohibits discharging certain pollutants into “the waters of the United States, including

the territorial seas” without a permit. But what constitutes “waters of the United States”—or WOTUS—

has been the subject of political debate and litigation for more than four decades. The Trump

Administration’s proposed regulations are intended to provide clarity on what waters and wetlands the

Clean Water Act governs, but observers expect legal challenges once the rule is finalized. While the

regulations are in proposed form, a string of court decisions related to previous WOTUS interpretations

have created a fragmented legal landscape in which “waters of the United States” means different things

in different parts of the nation.

A Recent History of WOTUS

For more than forty years, all three branches of government have struggled with how to interpret the

meaning of “waters of the United States” in the Clean Water Act (as detailed in this CRS Report). In the

Supreme Court’s most recent case on the issue from 2006, Rapanos v. United States, the High Court

issued a fractured 4-1-4 decision with no majority opinion providing a rationale on how to determine

whether a particular waterbody is a water of the United States. Writing for a four-justice plurality, Justice

Scalia advocated a bright-line rule whereby the phrase would cover only “relatively permanent, standing

or continuously flowing bodies of water,” such as streams, rivers, or lakes; and wetlands that have a

“continuous surface connection” to other waters subject to the Clean Water Act. Justice Kennedy, by

contrast, wrote in a concurring opinion that WOTUS may include waterbodies that possess a “significant

nexus” to traditionally navigable waters.

Since Rapanos, courts and commentators have not always agreed on how to apply the Court’s fractured

opinion in practice. Hoping to provide a “simpler, clearer, and more consistent approaches for identifying

the geographic scope of the Clean Water Act,” the Environmental Protection Agency (EPA) and Army

Corps of Engineers (Corps)—the agencies responsible for administering the Clean Water Act—

promulgated new regulations in 2015, titled the “Clean Water Rule,” which redefines WOTUS and

incorporates Justice Kennedy’s “significant nexus” test in his Rapanos concurrence. The Obama

Administration intended the Clean Water Rule to take effect in August 2015, but numerous plaintiffs,

including 31 states, filed suit challenging its legality. The plaintiffs argued, among other things, that the

new rule exceeded the agencies’ statutory and constitutional authority and did not comply with the

Administrative Procedure Act’s rulemaking requirements. As this litigation wove its way through the

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courts, President Trump—a vocal critic of the Clean Water Rule—took office and announced a change in

executive branch policy toward WOTUS.

The Trump Administration Charts a New Course

In February 2017, President Trump issued an executive order (examined here) directing EPA and the

Corps to review and revise or rescind the Clean Water Rule. Whereas the Clean Water Rule invoked

Justice Kennedy’s “significant nexus” test, the executive order directs the agencies to consider

interpreting the meaning of WOTUS in a manner consistent with Justice Scalia’s Rapanos plurality

opinion.

EPA and the Corps plan to carry out the executive order through a two-step process to (1) repeal the Clean

Water Rule and (2) engage in a separate rulemaking process to develop new regulations that will define

the jurisdictional reach of the Clean Water Act. In July 2017, the agencies issued proposed regulations

(Step One Proposal) that would carry out the first step of repealing the Clean Water Rule. Their most

recent proposed rule (Step Two Proposal), announced on December 11, 2018, would complete step two by

substantively redefining the meaning of WOTUS. Both rules are still in proposed form, and have not been

finalized.

How Does the Trump Administration’s Proposal Differ from the Clean Water Rule?

The definition of WOTUS in the Clean Water Rule differs significantly from the Step Two Proposal. The

Clean Water Rule deconstructs the jurisdictional analysis into three categories: (1) waters that are

categorically WOTUS; (2) waters subject to a case-specific analysis to determine if they satisfy the

“significant nexus” test; and (3) waters that are categorically excluded from WOTUS. The Trump

Administration’s Step Two Proposal retains the first and third categories. For the second category, the

proposal eliminates the “significant nexus” analysis for case-specific determinations, and seeks to replace

it with revised definitions of certain terms such as “tributary” and “adjacent wetlands.”

Other key changes in the Step Two Proposal include:

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Removing Clean Water Act coverage of “ephemeral waters” that flow or pool only in

response to precipitation and certain ditches that contain ephemeral flows or are “upland”

from other jurisdictional waters.

Requiring water to flow continuously year-round (“perennial waters”) or during certain

times of the year (“intermittent waters”) for Clean Water Act coverage.

Including only lakes and ponds that are traditionally navigable waters subject to federal

jurisdiction or that are connected to such waters through tributaries.

Removing interstate waters—or waters which form part of state’s boundary—as an

independent category of waters subject to the Clean Water Act.

Narrowing wetlands coverage to include only wetlands that abut jurisdictional waters or

that have a direct hydrological connection to such waters, and excluding wetlands

separated by a berm, dike, or other barrier.

Future of the Step Two Proposal

Once published in the Federal Register, the Step Two Proposal will be open for comment for 60 days.

While many industry interest groups praised the proposal, some environmental groups criticized the

approach and stated they will bring legal challenges when the rule is finalized. The focus of future

lawsuits, if filed, is likely to depend on the rulemaking process and content of the final rule. But observers

expect critics to challenge whether EPA and the Corps articulated sufficient rationale to depart from

Justice Kennedy’s “significant nexus” test. Critics of that test argue that it is overbroad and too

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unpredictable for the average property owner to determine whether a waterbody constitutes part of

WOTUS.

What Constitutes WOTUS While the Trump Administration’s Rules are in Proposed Form?

The current legal landscape defining WOTUS is fragmented and complex. Because both rules in the

Trump Administration’s rescind-and-replace process are still in proposed form, the Obama

Administration’s Clean Water Rule remains the current regulation defining WOTUS. The United States

Courts of Appeals for the Sixth Circuit (Sixth Circuit) had entered a nationwide stay of the Clean Water

Rule in 2015. In January 2018, however, the Supreme Court held in National Association of

Manufacturers (NAM) v. Department of Defense (discussed here) that the Sixth Circuit lacked

jurisdiction, and that the challenges to the Clean Water Rule must begin in multiple federal district courts

across the country.

Faced with the potential reinstatement of the Clean Water Rule as a result of the NAM decision, the Trump

Administration engaged in another rulemaking process designed to suspend the Clean Water Rule until

February 2020. While the Clean Water Rule states that it is effective as of August 28, 2015, EPA and the

Corps issued a final rule (Applicability Date Rule), which adds a new “applicability date” of February 6,

2020 to the Clean Water Rule. Although the Applicability Date Rule is a final rule, in late 2018, two

federal district courts determined that the agencies did not comply with administrative rulemaking

requirements and issued orders vacating the Applicability Date Rule nationwide.

While there currently is no instrument that suspends the Clean Water Rule on a nationwide basis, litigants

have successfully enjoined it in some parts of the country. After NAM, challenges to the Clean Water Rule

at the district court-level resumed. Three federal district courts have entered preliminary injunctions,

temporarily barring application of the Clean Water Rule in some, but not all, states. As a result, the Clean

Water Rule currently is enjoined in 28 states, but it is the current enforceable regulation in 22 states, the

District of Columbia, and U.S. territories.

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Figure 1. Status of the Clean Water Rule

Source: North Dakota v. EPA, 127 F. Supp. 3d 1047 (D.N.D. 2015); Georgia v. Pruitt. 326 F. Supp. 3d 1356 (S.D. Ga.

2018); Texas v. EPA, No. 3:15-CV-00162 (S.D. Tex. Sept. 12, 2018)

Congressional Interest in WOTUS

Because the WOTUS debate hinges on the meaning of a statutory term, Congress could enact legislation

that seeks to more clearly define the jurisdictional reach of the Clean Water Act. During the 114th

Congress, the Senate and House passed a resolution of disapproval seeking to nullify the Clean Water

Rule under the Congressional Review Act, but President Obama vetoed the resolution. As discussed in

more detail in this CRS Report, some Members of the 115th Congress introduced legislation that would

repeal the Clean Water Rule or redefine the Clean Water Act’s jurisdictional terms.

Author Information

Stephen P. Mulligan

Legislative Attorney

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Disclaimer

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