09/22/2017 - Regulatory Rollback

Defining Waters of the United States / Clean Water Rule

by Caitlin McCoy

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 streams vulnerable to pollution from sources like concentrated animal feeding operations (CAFOs), industrial facilities, and urban storm water. It could constrain pollution prevention efforts by the Environmental Protection Agency (EPA) for rivers, streams, and lakes. The Army Corps of Engineers (Army Corps), which manages the permitting program for work affecting wetlands could lose authority over a lot of wetlands, opening them up to development and sacrificing wetlands’ flood control capabilities.

For more information on this rollback:

Current Status

Jan. 23, 2020 EPA and Army Corps finalize the Navigable Waters Protection Rule: Definition of “Waters of the United States.” The new rule reduces the amount of waterways and wetlands protected by the Clean Water Act, as compared to the 2015 Clean Water Rule and the pre-2015 regulations.

April 21, 2020 The Navigable Waters Protection Rule is published in the Federal Register and will be effective June 22, 2020.

April 27, 2020 The Chesapeake Bay Foundation and ShoreRivers file a lawsuit in the U.S. District Court of the District of Maryland challenging the Navigable Waters Protection Rule. Chesapeake Bay Found. v. Wheeler, No. 1:20-cv-01064 (D. Md.). 

April 29, 2020 A coalition of environmental groups, led by the Conservation Law Foundation, files a lawsuit in the U.S. District Court in Massachusetts challenging the Navigable Waters Protection Rule. Conservation Law Found. v. EPA, No, 1:20-cv-10820 (D. Mass.). Another coalition of environmental groups, led by the South Carolina Coastal Conservation League, files a lawsuit in U.S. District Court for the District of South Carolina challenging the Navigable Waters Protection Rule. S. Carolina Coastal Conservation League v. Wheeler, No. 2:20-cv-01687 (D.S.C.).

May 1, 2020 A coalition of 17 states, New York City, and Washington DC files a lawsuit in the U.S. District Court for the Northern District of California challenging the Navigable Waters Protection Rule. California v. Wheeler, No. 3:20-cv-03005 (N.D. Cal.).

May 8, 2020 House Democrats introduce the Clean Water for All Act, a bill meant to block implementation of the Navigable Waters Protection Rule.

History

Jan. 9, 2001 The Supreme Court issues 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 agrees that the definition of “navigable waters” for the purpose of the Clean Water Act does not extend to isolated wetlands but only includes navigable rivers, their tributaries, and adjacent wetlands.

June 19, 2006 The Supreme Court further muddies the waters in United States v. Rapanos. 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. Since the decision, courts have generally applied both tests, predominantly relying on Justice Kennedy’s “significant nexus” approach.

June 29, 2015 EPA and Army Corps publish the final Clean Water Rule that defines which wetlands and streams are subject to protection under the Clean Water Act. It is intended to take effect on August 28, 2015. Over the next two days, 27 states sue EPA in four federal courts (Houston, Columbus, Bismarck, and Savannah). Challengers eventually bring actions in eight federal courts of appeals and 18 federal district courts.

Aug. 27, 2015 The U.S. District Court for the District of North Dakota issues a preliminary injunction, preventing implementation of the 2015 Clean Water Rule in the 13 states challenging the rule in that court. North Dakota v. EPA, No. 3:15-cv-059 (D.N.D.).

Oct. 9, 2015 The Sixth Circuit issues a stay, putting a nationwide hold on the rule. Ohio v. U.S. Army Corps of Eng’rs, Nos. 15-3799/3822/3853/3887 (6th Cir.).

Feb. 22, 2016 The Sixth Circuit holds that the Clean Water Rule challenge must be heard in federal courts of appeal and not in federal district courts. In re: U.S. Dep’t of Defense & U.S. Envtl. Protection Agency Final Rule: Clean Water Rule, Nos. 15-3751, et al. (6th Cir.).

Jan. 13, 2017 The Supreme Court agrees to hear the question of which federal court should hear challenges to the Clean Water Rule. Nat’l Ass’n of Manufacturers v. Dept. of Defense, No. 16-299 (U.S.).

Trump Era

March 6, 2017 EPA and Army Corps publish their intent to “review and rescind or revise” the Clean Water Rule.

March 9, 2017 EPA asks the Supreme Court to suspend the case while the Administration reviews the rule. Nat’l Ass’n of Mfr.s v. Dept. of Defense, No. 16-299 (U.S.).

April 3, 2017 The Supreme Court denies EPA’s request, meaning the case will proceed to determine where Clean Water Act challenges should be heard. Nat’l Ass’n of Mfr.s v. Dept. of Defense, No. 16-299 (U.S.).

June 27, 2017 EPA and Army Corps propose to rescind the Clean Water Rule and revert to the regulations that predated it. They say they will create a new rule at a later date, which will be based on Justice Scalia’s opinion in Rapanos providing jurisdiction only over “relatively permanent, standing or continuously flowing bodies of water” connected to navigable rivers, and connected wetlands.

July 27, 2017 EPA and Army Corps publish the proposal to rescind the rule in the Federal Register. The comment period ends on August 28, 2017, but is extended to September 27, 2017.

Nov. 16, 2017 EPA proposes to delay the effective date of the 2015 rule for two years after “the date of final action on this proposal.”  This will likely push the effective date to 2020. Without a delay, the Obama-era rule could be effective in most states.

Jan. 22, 2018The Supreme Court rules that challenges to the 2015 Clean Water Rule must be heard in federal district courts. Nat’l Ass’n of Mfr.s v. Dep’t of Defense, No. 16–299 (U.S.).

Feb. 6, 2018 EPA finalizes a rule that delays the effective date of the 2015 Clean Water Rule for two years, to February 6, 2020. The same day New York files a multi-state lawsuit against EPA’s delay rule. New York v. EPA, No. 1:18-cv-1030 (S.D.N.Y.). Two coalitions of environmental groups sue EPA over the delay as well. S. Carolina Coastal Conservation League v. Pruitt, No. 2-18-cv-330 (D.S.C.), NRDC v. EPA, No. 18-cv-1048 S.D.N.Y.).

Feb. 9, 2018 The American Farm Bureau asks a federal District Court in Texas to issue a nationwide stay on the 2015 Clean Water Rule.

Feb. 14, 2018 Another coalition of environmental groups notifies EPA it will sue over the delay rule.

Feb. 28, 2018 The Sixth Circuit lifts its 2015 stay of the Clean Water Rule. But EPA’s delay rule is now in effect, so the Clean Water Rule does not go into effect.

March 30, 2018 EPA Administrator Pruitt signs 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.”

May 1, 2018 The U.S. District Court for the District of North Dakota denies the Trump administration’s request to delay litigation until February 2019. The case will continue normally. North Dakota v. EPA, No. 3:15-cv-059 (D.N.D.).

May 29, 2018 Judge Oetken in the U.S. District Court for the Southern District of New York denies requests by EPA to transfer two cases challenging the delay rule. EPA requested transfer of these cases to the U.S. District Court for the Southern District of Texas where there are ongoing challenges of the Clean Water Rule. Judge Oetken found that the cases present different legal questions: the cases in New York only challenge the validity of the delay rule, whereas the cases in Texas challenge the Clean Water Rule. New York v. EPA, No. 1:18-cv-1030 (S.D.N.Y.).

June 11, 2018 Judge Wood of U.S. District Court for the Southern District of Georgia grants an injunction and halts 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. Georgia v. Pruitt, No. 2:15-cv-79 (S.D. Ga.).

June 13, 2018 The Waterkeeper Alliance and other conservation groups file 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. Waterkeeper v. Pruitt, No.18-cv-3521 (N.D. Cal.).

June 15, 2018 EPA and Army Corps send a 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 a proposed rule is published in the Federal Register and open for comment.

June 29, 2018 EPA and Army Corps issue a supplemental notice of proposed rulemaking to the July 2017 proposal to repeal the 2015 Clean Water Rule. The supplemental notice clarifies that the agencies propose to permanently repeal the entire Clean Water Rule and put the pre-2015 regulations back in place while they finalize a new definition of “waters of the United States.” The agencies have opened a comment period to seek additional comments on the decision to repeal the Clean Water Rule and restore pre-2015 regulations as well as the legal basis for the Clean Water Rule. The comment period opened on July 12, 2018 and ended on August 13, 2018.

Aug. 13, 2018 Twelve state attorneys general submit comments on the supplemental notice of proposed rulemaking. The comments express strong support for maintaining the Clean Water Rule and not repealing it.

Aug. 16, 2018 The U.S. District Court for the District of South Carolina enjoins the delay rule for failure to comply with the Administrative Procedure Act. This decision means that the Clean Water Rule is in effect in 26 states where federal district court judges have not stayed it. S. Carolina Coastal Conservation League v. Pruitt, No. 2-18-cv-330 (D.S.C.).

Sep. 12, 2018 The U.S. District Court for the Southern District of Texas enjoins the implementation of the Clean Water Rule in Texas, Louisiana, and Mississippi, limiting the Clean Water Rule’s effectiveness to 23 states. Am. Farm Bureau Fed’n v. EPA, No. 15-cv-165 (S.D. Tex.).

Nov. 26, 2018 The U.S. District Court for the Western District of Washington holds that the EPA made an error when it delayed the 2015 Clean Water Rule “without providing the public with a meaningful opportunity to comment.” Like the August 16 decision from the U.S. District Court in South Carolina, this ruling means the Clean Water Rule is in effect in those states where federal judges have not stayed it. Puget Soundkeeper Alliance v. Wheeler, No. C15-1342-JCC (W.D. Wash.).

Dec. 11, 2018 EPA and Army Corps release the proposed rule revising the definition of “waters of the United States.” The proposal seeks to limit the definition of “waters of the United States” as compared with the 2015 Clean Water Rule by excluding ephemeral waters that flow in response to rain and reducing the amount of protected wetlands. It is published in the Federal Register on Feb. 14, 2019.

Dec. 17, 2018 Senator Rand Paul of Kentucky introduces a bill to amend the Clean Water Act to define the term “waters of the U.S.” as only waters that are “navigable in fact” or have permanent, standing or continuously flowing water. The bill is an updated version of his 2015 “Defense of Environment and Property Act.” Co-sponsored by Senator Ted Cruz of Texas and Chuck Grassley of Iowa, the bill would go beyond the current EPA/Army Corps proposed rule that excludes ephemeral streams to exclude intermittent streams as well.

Feb. 4, 2019 The coalition of industry groups involved in challenging the August decision of the U.S. District Court for the District of South Carolina to enjoin the delay rule withdraws from the appeal in the Fourth Circuit Court of Appeals. The Department of Justice has not withdrawn the appeal and it is still pending. S. Carolina Coastal Conservation League v. Pruitt, No. 2-18-cv-330 (D.S.C.).

Feb. 4, 2019 California prepares to finalize new regulations for wetlands protection which have been in progress since the Supreme Court’s decision in 2006. Although the drafting of these regulations pre-dated the Trump administration’s recent proposed rule, the regulations may be adopted just in time to protect wetlands that will lose protection under the federal Clean Water Act.

March 11, 2019 EPA and Army Corps will no longer defend the delay rule in court. The delay rule is set to expire in 2020 and was put in place to prevent the Clean Water Rule from going into effect and provide time to create and finalize a replacement rule. Until the proposed WOTUS rule is finalized, the lower court decisions will stand, meaning that the Clean Water Rule is in effect in some states and the pre-2015 regulations are in effect in others. However, it is unlikely the administration is enforcing the Clean Water Rule in the states where it is in effect now given the impending repeal and new rule.

March 13, 2019 Michigan files a motion with an Ohio federal court withdrawing from an ongoing challenge to the 2015 Clean Water Rule.

March 19, 2019 EPA denies requests to extend deadline for public comments for its proposed rule revising the definition of “waters of the United States.” The submission deadline for public comments remains April 15, 2019.

March 22, 2019 The New Mexico Environment Department files a motion with a North Dakota federal court withdrawing from a 2015 challenge to the Obama-era Clean Water Rule. North Dakota v. EPA, No. 3:15-cv-059 (D.N.D.).

March 26, 2019 The U.S. District Court for the Southern District of Ohio denies Ohio and Tennessee’s request to halt implementation of the 2015 Clean Water Rule in those two states. The court will hear the states’ claims that the Clean Water Rule violates the Administrative Procedure Act and 10th Amendment, but the rule will remain in effect in Ohio and Tennessee while the litigation progresses. Ohio v. EPA, No. 2:15-cv-02467 (S.D. Ohio).

April 2, 2019 California adopts new wetlands regulations that define wetlands and clarify which wetlands are subject to state regulation, including permitting for dredging or filling activities. The California Water Board noted that “The newly adopted rules…will ensure that waters of the state will continue to be protected even if protections for federal waters are narrowed by administrative actions or the courts.”

April 16, 2019 Two cattle industry trade groups file a lawsuit to require EPA to force Washington and Oregon to reinstate Clean Water Act regulations that pre-date the Clean Water Rule. Washington and Oregon are two states where the 2015 Clean Water Rule is in effect after the November 26, 2018 decision that struck down the delay rule and found the Clean Water Rule to be enforceable in states where other federal courts have not stayed its implementation. Wash. Cattlemen’s Ass’n v. EPA, No. 2:19-cv-00569 (W.D. Wash.).

April 29, 2019 Wisconsin files a motion with a federal district court in Georgia withdrawing from a challenge to the Obama-era Clean Water Rule. Georgia v. Pruitt, No. 2:15-cv-79 (S.D. Ga.).

May 14, 2019 The North Dakota federal court grants Colorado’s request to withdraw and the Clean Water Rule rule is in effect there now. The court also grants New Mexico’s motion to withdraw, as filed by the New Mexico Environment Department. However, since the New Mexico Environment Department had filed to withdraw, several New Mexico counties intervened in the lawsuit in opposition to the rule so it is unclear whether the Clean Water Rule is in effect in all or part of New Mexico. North Dakota v. EPA, No. 3:15-cv-059 (D.N.D.).

May 28, 2019 U.S. District Court for the Southern District of Texas rules that the Obama administration violated the Administrative Procedure Act by issuing a final Clean Water Rule in 2015 that differed too much from the proposed rule. Specifically, the court found the public did not have notice and an opportunity to comment on a final “Connectivity Report” that detailed how wetlands and streams can affect downstream water quality and the criteria used to define adjacent wetlands – using physical distance in the final rule rather than the criteria based on ecology and hydrology in the proposed rule. This ruling does not affect the other cases challenging the rule. The judge left the injunction in place that blocks implementation of the Clean Water Rule in Texas, Louisiana, and Mississippi and sent the rule back to EPA and Army Corps. Texas v. EPA, No. 3:15-CV-00162 (S.D. Tex.).

Aug. 21, 2019 In the U.S. District Court for the Southern District of Georgia, Judge Wood rules that the 2015 Clean Water Rule’s definition of “waters of the US” interpreted the Clean Water Act too broadly, but Judge Wood also determines that Justice Kennedy’s significant-nexus test should be a feature of the regulations, sending the rule back to the agency for reconsideration. The court also rules to keep its preliminary injunction in place pending the outcome of the rulemaking process for the new rule. Georgia v. Pruitt, No. 2:15-cv-79 (S.D. Ga.).

Sep. 12, 2019 EPA and Army Corps finalize the repeal of the Clean Water Rule and the reinstatement of the previous regulations (adopted in 1986) while they continue to work to finalize their new rule defining “waters of the United States.” The repeal will take effect on Dec. 23, 2019.

Sep. 22, 2019 Judge Walker of the Northern District of Florida orders the pending litigation over the 2015 Clean Water Rule be held in abeyance (paused) for 75 days until the repeal of the Clean Water Rule is effective. Southeast Stormwater Ass’n v. EPA, Case No. 4:15-cv-579-MW/CAS (N.D. Fla.).

Sep. 24, 2019 California files a lawsuit in the U.S. District Court for the Northern District of California, challenging EPA’s refusal to provide Clean Water Act protections to salt ponds in San Francisco Bay. California argues that EPA is improperly applying its new approach to which waters and wetlands are covered by the Act, before the new rule is final. California v. EPA, (N.D. Cal.).

Oct. 22, 2019 The New Mexico Cattle Growers’ Association challenges the recently restored 1986 regulations in the U.S. District Court for the District of New Mexico, seeking a preliminary injunction that would block the government from applying the Clean Water Act to ephemeral and intermittent waterways. N.M. Cattle Growers’ Ass’n v. EPA, No. No. 1:19-cv-00988 (D.N.M.).

Oct. 23, 2019 A coalition of environmental groups files a case in the U.S. District Court for the District of South Carolina challenging the repeal and asking the court to undo the Trump administration’s “arbitrary and unlawful attempt to repeal the protections of the Clean Water Rule.” S. Carolina Coastal Conservation League v. Wheeler, No. 2:19-cv-03006 (D.S.C.).

Nov. 7, 2019 The U.S. District Court for the Southern District of Texas refuses to vacate the 2015 Clean Water Rule, standing by the court’s previous order to remand the 2015 Clean Water Rule back to EPA. Texas v. EPA, No. 3:15-CV-00162 (S.D. Tex.).

Dec. 4, 2019 Two landowners file a lawsuit in the U.S. District Court for the Northern District of New York challenging the administration’s repeal of the 2015 Clean Water Rule. Their property contains streams and tributaries that met the definition of Waters of the U.S. under the Clean Water Rule and are no longer protected by the CWA now that the repeal is final. Murray v. Wheeler, No. 1:19-CV-1498 (N.D.N.Y.).

Dec. 5, 2019 EPA and Army Corps send the final rule revising the definition of Waters of the U.S. to the Office of Management and Budget for review, which is the final step before a rule is released.

Dec. 9, 2019 Judge Walker of the Northern District of Florida grants a request to hold the litigation over the 2015 Clean Water Rule in abeyance for an additional 45 days. Southeast Stormwater Ass’n v. EPA, Case No. 4:15-cv-579-MW/CAS (N.D. Fla.).

Dec. 20, 2019 A coalition of 14 states, New York City, and Washington, DC files a lawsuit challenging the repeal of the Clean Water Rule. New York v. EPA, No. 19-11673 (S.D.N.Y.).

Dec. 23, 2019 Oklahoma and industry groups voluntarily dismiss the case they filed challenging the 2015 Clean Water Rule. Oklahoma v. EPA, No. 19-5055 (10th Cir.).

Dec. 31, 2019 EPA’s Science Advisory Board releases a draft report that identifies flaws in the proposed rule revising the definition of “waters of the United States.” The board concludes that “The proposed definition of WOTUS is not fully consistent with established EPA recognized science, may not fully meet the key objectives of the CWA…and is subject to a lack of clarity for implementation. The departure of the proposed Rule from EPA recognized science threatens to weaken protection of the nation’s  waters…These changes are proposed without a fully supportable scientific basis, while potentially introducing substantial new risks to human and environmental health.”

Jan. 23, 2020 EPA and Army Corps finalize the Navigable Waters Protection Rule: Definition of “Waters of the United States.” The new rule reduces the amount of waterways and wetlands protected by the Clean Water Act, as compared to the 2015 Clean Water Rule and the pre-2015 regulations. The rule will become effective 60 days after publication in the Federal Register.

Feb. 18, 2020 Judge Norton of the U.S. District Court for the District of South Carolina grants a joint motion to pause the case challenging the repeal of the Clean Water Rule for 75 days while the parties analyze the new Navigable Waters Protection Rule. S. Carolina Coastal Conservation League v. Wheeler, No. 2:19-cv-03006 (D.S.C.).

Feb. 27, 2020 EPA’s Science Advisory Board issues final commentary on the proposed rule defining the scope of Waters federally regulated under the Clean Water Act, which became the Navigable Waters Protection Rule. The Board found that the proposed revised definition “…decreases protection for our Nation’s waters and does not provide a scientific basis in support of its consistency with the objective of restoring and maintaining ‘the chemical, physical and biological integrity’ of these waters.” In comparison to the Clean Water Rule, the Board found “…[t]he proposed Rule offers no comparable body of peer reviewed evidence, and no scientific justification for disregarding the connectivity of waters accepted by current hydrological science.”

April 21, 2020 The Navigable Waters Protection Rule is published in the Federal Register and will be effective June 22, 2020.

April 27, 2020 A cattle ranchers’ group requests to file a supplemental complaint challenging the Navigable Waters Protection Rule to add it to its lawsuit filed in Oct. 2019 challenging the restored 1986 regulations. N.M. Cattle Growers’ Ass’n v. EPA, No. No. 1:19-cv-00988 (D.N.M.).

April 27, 2020 The Chesapeake Bay Foundation and ShoreRivers file a lawsuit in the U.S. District Court of the District of Maryland challenging the Navigable Waters Protection Rule. Chesapeake Bay Found. v. Wheeler, No. 1:20-cv-01064 (D. Md.). 

April 29, 2020 A coalition of environmental groups, led by the Conservation Law Foundation, files a lawsuit in the U.S. District Court in Massachusetts challenging the Navigable Waters Protection Rule. Conservation Law Found. v. EPA, No, 1:20-cv-10820 (D. Mass.).

April 29, 2020 Another coalition of environmental groups, led by the South Carolina Coastal Conservation League, files a lawsuit in U.S. District Court for the District of South Carolina challenging the Navigable Waters Protection Rule. S. Carolina Coastal Conservation League v. Wheeler, No. 2:20-cv-01687 (D.S.C.).

May 1, 2020 A coalition of 17 states, New York City, and Washington DC files a lawsuit in the U.S. District Court for the Northern District of California challenging the Navigable Waters Protection Rule. California v. Wheeler, No. 3:20-cv-03005 (N.D. Cal.).

May 8, 2020 House Democrats introduce the Clean Water for All Act, a bill meant to block implementation of the Navigable Waters Protection Rule.

May 18, 2020 The coalition of states requests a nationwide injunction or stay to halt implementation of the Navigable Waters Protection Rule until the litigation is resolved. California v. Wheeler, No. 3:20-cv-03005 (N.D. Cal.).