09/22/2017 - Clean Water Act - Federal Policy - Regulatory Tracker

Defining Waters of the United States / Clean Water Rule

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Quick Take

As part of a two-step process to restore and update the regulatory definition of “waters of the United States,” EPA has proposed reinstating the 2015 definition updated to reflect Supreme Court case law. Additionally, the Supreme Court will hear Sackett II next term, a case which has the potential to shape EPA’s authority to define what waters are protected under the Clean Water Act.

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 subject to state jurisdiction, which could constrain pollution prevention efforts by the Environmental Protection Agency (EPA) for those waters and the Army Corps of Engineers (Army Corps or ACOE), which manages the permitting program for work affecting wetlands, which serve as flood control areas.

Current Status

On April 21, 2020, the Trump administration published the Navigable Waters Protection Rule which redefined “Waters of the United States” to reduce the number of waterways and wetlands protected by the Clean Water Act, as compared to the 2015 Clean Water Rule and the pre-2015 regulations. However, in August 2021, the U.S. District Court for the District of Arizona remanded and vacated the rule. In light of this ruling, the Biden administration’s EPA announced it would interpret the term “consistent with the pre-2015 regulatory regime until further notice.”

EPA continues to work on its two-step process to “restore longstanding protections” to the regulatory definition of WOTUS that applied before the 2015 Obama-era rule, and then refine that definition. On November 18, 2021, EPA and the Corps of Engineers released a proposed rule that defines the scope of waters protected under the CWA, rescinding the Trump Administration’s Rule. The new proposal would reinstate the pre-2015 definitions of “waters of the United States” updated to reflect the Supreme Court case law. To support the second step of the rulemaking refining the definition of “waters of the United States,” EPA is engaging stakeholders and has started holding ten regionally focused roundtables in early 2022.

While EPA continues to work on its rules, the Supreme Court has agreed to hear a case on which test controls what wetlands fall under the jurisdiction of the CWA. Petitioners and EPA filed briefs, and the Supreme Court will hear oral arguments on October 3, 2022. Sackett v. EPA, No. 21-454 (2022). Listen to the arguments here.

For more legal background of the upcoming Sackett case, see Anna Todd’s Piece: Sackett v. EPA and the Definition of Water of the United States.

Timeline of Events

Previous administrations
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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 causes further confusion 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.

obama administration
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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 supposed 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 EPA and Army Corps from implementing the 2015 Clean Water Rule in the 13 states that challenged 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 Administration
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March 6-9 2017 EPA and Army Corps publish their intent to “review and rescind or revise” the Clean Water Rule. 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 to suspend the case, meaning the case will proceed to determine what courts should hear the Clean Water Act challenges. 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 they will create a new rule that 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. 6-14, 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 and another coalition of environmental groups notifies EPA it will sue over the delay rule. 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. 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 District Court for the District of North Dakota denies the Trump administration’s request to delay litigation until February 2019. North Dakota v. EPA, No. 3:15-cv-059 (D.N.D.).

May 29, 2018 The District Court for the Southern District of New York denies requests by EPA to transfer two cases challenging the delay rule to the Southern District of Texas, where there are ongoing challenges on the Clean Water Rule. The New York court 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 The 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 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 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.”

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-Sept. 12, 2018 The District Court for the District of South Carolina enjoins the delay rule for failure to comply with the Administrative Procedure Act. S. Carolina Coastal Conservation League v. Pruitt, No. 2-18-cv-330 (D.S.C.). The U.S. District Court for the Southern District of Texas enjoins the implementation of the Clean Water Rule in Texas, Louisiana, and Mississippi, and the rule is now halted in 27 states. Am. Farm Bureau Fed’n v. EPA, No. 15-cv-165 (S.D. Tex.).

Nov. 26, 2018 The 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 the 23 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.

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. 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 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.). Additionally, California prepares to finalize new regulations for wetlands protection which have been in progress since the Supreme Court’s decision in 2006. 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.

March 13-22, 2019 Michigan files a motion with an Ohio federal court withdrawing from an ongoing challenge to the 2015 Clean Water Rule. 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 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 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.

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 The 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. 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 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 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.”

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 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. 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.

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 number of waterways and wetlands protected by the Clean Water Act, as compared to the 2015 Clean Water Rule and the pre-2015 regulations.

Feb. 18, 2020 The 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.”

April 27-May 1, 2020 A slew of groups, including cattle ranchers, environmental organizations in Maryland, Massachusetts, and South Carolina, and a coalition including 17 states, New York City, and Washington, DC file separate lawsuits in federal district courts in New Mexico, Marland, Massachusetts, South Carolina, and Northern California challenging the Navigable Waters Protection Rule. N.M. Cattle Growers’ Ass’n v. EPA, No. No. 1:19-cv-00988 (D.N.M.); Chesapeake Bay Found. v. Wheeler, No. 1:20-cv-01064 (D. Md.); Conservation Law Found. v. EPA, No. 1:20-cv-10820 (D. Mass.); S. Carolina Coastal Conservation League v. Wheeler, No. 2:20-cv-01687 (D.S.C.); 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.).

May 22, 2020 Colorado files a lawsuit in U.S. District Court for the District of Colorado challenging the Navigable Waters Protection Rule, and then requests a nationwide injunction to halt implementation of the Navigable Waters Protection Rule. Colorado v. EPA, No.1:20-cv-01461 (D. Colo.).

May 28-June 1, 2020 A coalition of industry groups including the American Farm Bureau Federation, American Petroleum Institute, U.S. Chamber of Commerce, and National Mining Association request to intervene in the South Carolina case and a similar coalition intervenes in the California case to support the Trump administration in both cases. S. Carolina Coastal Conservation League v. Wheeler, No. 2:20-cv-01687 (D.S.C.); California v. Wheeler, No. 3:20-cv-03005 (N.D. Cal.).

June 1, 2020 A coalition of 23 states requests to intervene in the case led by California to support the Trump administration. California v. Wheeler, No. 3:20-cv-03005 (N.D. Cal.).

June 19, 2020 The Northern District of California denies a request for a nationwide injunction of the Navigable Waters Protection Rule. California v. Wheeler, No. 3:20-cv-03005 (N.D. Cal.). The same day, a federal judge in Colorado grants a stay, halting implementation of the rule within the state. Colorado v. EPA, No. 1:20-cv-01461 (D. Colo.).

June 22, 2020 The Navigable Waters Protection Rule takes effect in every state except Colorado. That same day, a number of groups file lawsuits in federal district courts challenging the rule, including the Navajo Nation in the District of New Mexico, the Puget Soundkeeper Alliance, Idaho Conservation League, Sierra Club, and Mi Familia Vota in the Western District of Washington, and a coalition of Indigenous tribes in the District of Arizona. Navajo Nation v. Wheeler, No. 2:20-cv-00602 (D.N.M.); Puget Soundkeeper Alliance v. EPA, No. 2:20-cv-00950 (W.D. Wash.); Pascua Yaqui Tribe v. EPA, No. 4:20-cv-00266 (D. Ariz.).

June 23-25 2020 Lawyers for the EPA and Army Corps file an appeal of the District of Colorado’s decision to block the agencies’ rule in the U.S. Court of Appeals for the Tenth Circuit. Colorado v. EPA, No. 1:20-cv-01461 (D. Colo.).

June 25, 2020 The Environmental Integrity Project, Food & Water Watch, Gunpowder Riverkeeper, Lower Susquehanna Riverkeeper, and Patuxent Riverkeeper file a lawsuit in the U.S. District Court for the District of Columbia challenging the Navigable Waters Protection Rule. Envtl. Integrity Project v. Wheeler, No. 1:20-cv-01734 (D.D.C.).

June 25, 2020 The Army Corps and EPA file an appeal of the district court’s decision to grant a stay and halt implementation of the rule in Colorado. Colorado v. EPA, No. 20-1238 (10th Cir.).

Aug. 5, 2020 The Sixth Circuit dismisses Ohio and Tennessee’s case challenging the 2015 Clean Water Rule as moot since the rule has been officially repealed and replaced with the Navigable Waters Protection Rule. Ohio and Tennessee tried to keep the case alive, arguing that the 2015 rule could be relevant if another court strikes down the Navigable Waters Protection Rule, but the court found that scenario unlikely in the near future and not enough to keep the case going in the meantime. Ohio v. EPA, No. 19-3500 (6th Cir.).

Aug. 6, 2020 The U.S. District Court for District of Oregon dismisses a challenge to the Navigable Waters Protection Rule filed by the Oregon Cattlemen’s Association, arguing the rule was overbroad. The case was dismissed for lack of standing and could be refiled. Oregon Cattlemen’s Ass’n v. EPA, D. Or., No. 19-00564 (D. Or.).

Oct. 15, 2020 The coalition of environmental groups files a motion for summary judgment against EPA. The groups argue that the case doesn’t need to proceed further for the court to rule that the Navigable Waters Protection Rule is arbitrary and capricious, inconsistent with the Clean Water Act, and its adoption violated the Endangered Species Act. Conservation Law Found. v. EPA, No. 1:20-cv-10820 (D. Mass.).

Nov. 12, 2020 The Center for Biological Diversity and the Center for Food Safety withdraw from a challenge to the Navigable Waters Protection Rule in order to conserve resources in light of the results of the election. California v. Wheeler, No. 3:20-cv-03005 (N.D. Cal.).

Nov. 18, 2020 The U.S. Court of Appeals for the Tenth Circuit hears oral argument in the appeal of the stay of the rule within Colorado. Colorado v. EPA, No. 20-1238 (10th Cir.).

Nov. 24, 2020 Fifteen states, led by California Attorney General Xavier Becerra, file a motion for summary judgment in the Northern District of California to strike down the Navigable Waters Protection Rule. California v. Wheeler, No. 3:20-cv-03005 (N.D. Cal.).

Dec. 15, 2020 Seventy-four Democratic members of Congress file an amicus brief supporting the motion for summary judgment in the litigation filed by a coalition of environmental groups, led by the Conservation Law Foundation. Conservation Law Found. v. EPA, No. 1:20-cv-10820 (D. Mass.).

Dec. 23, 2020 South Carolina District Court holds the case in abeyance until March 4, 2021. South Carolina Coastal Conservation League et al v. Wheeler et al, Docket No. 2:19-cv-03006 (D.S.C. Oct 23, 2019).

Biden Administration
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Jan. 20, 2021 The Army Corps of Engineers and EPA will review the Navigable Waters Protection rule to ensure it is consistent with the priorities outlined in President Biden’s Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. Under the same order, President Biden revokes Trump’s Executive Order 13778 requiring review and reversal of the Obama-era “Waters of the United States” rule.

Jan. 29, 2021 Attorneys for EPA and the Army Corps file a motion to hold the consolidated cases in Chesapeake Bay Found. v. Wheeler (now Chesapeake Bay Found. v. Nishida) in abeyance to give the agencies time to review the Navigable Waters Protection rule. Nos. 1:20-cv-01064 (D. Md.).

Feb. 25, 2021 The US District Court for the Western District of Washington grants EPA’s and the Army Corps’ request to hold a case challenging the Trump administration’s Navigable Waters Protection Rule in abeyance for 120 days. Puget Soundkeeper Alliance v. EPA, No. 2:20-cv-00907 (W.D. Wash). Two days prior, the court granted a similar request in another case brought by Washington State challenging the same rule. State of Washington v. EPA, No. 2:19-cv-00884 (W.D. Wash.).

March 2, 2021 The Tenth Circuit reverses a lower court decision halting implementation of the Navigable Waters Protection Rule, finding the state of Colorado failed to show it would “suffer irreparable injury” without a preliminary injunction. One day prior, the court rejected EPA’s and the Army Corps’ request to pause the suit for 60 days. State of Colorado v. EPA, No. 20-1238 (10th Cir.).

March 26, 2021 Two New Mexico Native American Tribes, the Pueblo of Laguna and Pueblo of Jemez, sue EPA in the District Court for the District of New Mexico arguing that the Navigable Waters Protection Rule is inconsistent with the CWA’s purpose, and violates the federal government’s trust obligations towards Tribes. Pueblo of Laguna, et al., v. Regan, [No. Pending] (D.N.M.).

March 31, 2021 EPA’s Office of Inspector General releases a report finding that under President Trump, EPA failed to comply with important process “milestones” when crafting the Navigable Waters Protection Rule. 

June 9, 2021 EPA and the Army Corps announce they intend to revise the definition of “waters of the US”.

June 9, 2021 EPA and the Army Corps file a motion to remand the Trump administration’s Navigable Waters Protection Rule: Definition of “Waters of the United States” to the agencies and dismiss the case before the U.S. District Court for Massachusetts.

July 30, 2021 EPA and the Army Corps release a public meeting schedule for stakeholders on defining “waters of the United States” and how to implement that definition for the agencies’ consideration during the rulemaking process. Written comments are due by Sept. 3, 2021.

Aug. 16, 2021 The Ninth Circuit holds that the federal jurisdiction applies to wetlands in Idaho based on Justice Kennedy’s “significant nexus” approach for determining jurisdiction. Many expect this decision to be appealed to the Supreme Court. 

Aug 30, 2021 The District Court for the District of Arizona remands and vacates the Trump Administration’s Navigable Waters Protection rule. Agreeing with the Plaintiffs, the court finds that the errors in the rules “involve fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition of “waters of the United States.” As a result, the pre-2015 regulations apply while the Biden Administration works to develop a new rulemaking.

Sept. 2021 In light of the Arizona decision, EPA indicates it will “halt” its process to reinstate the pre-2015 regulatory definition of “waters of the United States” and will interpret the term “consistent with the pre-2015 regulatory regime until further notice.” 

Sept. 16, 2021 The District Court for Northern California remands Case No. 20-cv-03005-RS challenging the Trump Administration’s Navigable Waters Protection rule recognizing the District of Arizona decision vacatur the rule.

Sept. 22, 2021 Petitioners file writ of certiorari with the Supreme Court appealing a Ninth Circuit decision’s application of Justice Kennedy’s “significant nexus” test. The petitioners urge the Court to determine whether Rapanos v. United States should be revisited to adopt plurality’s test, authored by Justice Scalia, for wetlands jurisdiction under the CWA.

Sept. 27, 2021 The District Court for New Mexico remands and vacates the Trump Administration’s Navigable Waters Protection in Case No. 20-cv-602-MV/GJF.

Oct. 12, 2021 EPA submits proposed Revised Definition of “Waters of the United States” to OMB.  

Oct. 25, 2021 Plaintiffs appeal the US District Court for the District of Arizona’s order vacating and remanding the Navigable Waters Protection Rule and seek a stay of the order.

Nov. 18, 2021 EPA and Department of the Army, Corps of Engineers release a proposed rule to define the scope of waters protected under the CWA, rescinding the Trump Administration’s Navigable Waters Protection Rule. The rule would reinstate the pre-2015 definitions of “waters of the United States” updated to reflect the Supreme Court case law.  Comments are due by February 7, 2022.

Dec. 27, 2021 The Army Corps publishes a final rule issuing 41 Nationwide Permits authorizing activities with minimal adverse environmental impacts in federally jurisdictional waters and wetlands. The permits are effective  Feb. 25, 2022 and expire Mar. 14, 2026. 

Jan. 2, 2022  The Supreme Court grants a petition for writ of certiorari on the question of whether “the Ninth Circuit set forth the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act” in Sackett v. EPA. 

Jan. 5, 2022 The Army Corps announces it will define “waters of the United States” consistent with the pre-2015 regulatory regime in light of the District of Arizona’s August 30, 2021 order vacating and remanding the Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency

Feb. 3, 2022 The Ninth Circuit grants a request to dismiss the appeal of the US District Court for the District of Arizona’s order vacating and remanding the Navigable Waters Protection Rule.

Apr. 11-21, 2022 The Petitioners and amici in support of the petitioners file their briefs in Sackett v. EPA. The Petitioners’ brief argues for a two-step test for the Court to adopt in determining when a wetland is regulated under WOTUS. The first step would evaluate whether the wetland is “inseparably bound” via continuous surface-water connection to another body of water. The second step would consider whether that body of water falls within the definition of a “water of the United States.” 

Apr. 22, 2022 EPA’s Science Advisory Board (SAB) announces it will review EPA’s revised definition of WOTUS

May 9, 2022 EPA and ACE hold a regional roundtable to hear from midwestern stakeholders on their upcoming WOTUS rulemaking. That same day, EPA’s Science Advisory Board (SAB) releases a draft report commenting on the scientific and technical bases for EPA’s proposed definition of WOTUS. Among other comments, SAB commends EPA for extending jurisdiction to shallow subsurface hydrologic connections.

June 10, 2022 EPA files a brief in the Supreme Court in Sackett v. EPA arguing for application of the significant-nexus test. No. 21-454 (2022). The Supreme Court will hear oral arguments on October 3, 2022

June 17, 2022 Several groups including environmental organizations, tribes, members of Congress, states, and former EPA Administrators file amici in support of EPA. Sackett v. EPA, No. 21-454 (2022).

July 8, 2022 Petitioners file reply briefs in the Supreme Court. Sackett v. EPA, No. 19-35469 (2022). 

Sep. 12, 2022 The White House Office of Management and Budget receives EPA’s final rule, Revised Definition of Waters of the United States, for review.