09/22/2017 - Regulatory Rollback

Defining Waters of the United States / Clean Water Rule

by Caitlin McCoy, Robin Just

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 stormwater. It would also constrain pollution prevention efforts by the Environmental Protection Agency (EPA) and the Army Corps of Engineers (USACE), which manages the permitting program for work affecting wetlands.

Current Status

June 29, 2018 The EPA and Army Corps issue a supplemental notice of proposed rulemaking to the July 2017 proposal to repeal the 2015 Clean Water Rule, defining “waters of the United States.” 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. 16, 2018 The U.S. District Court for the District of South Carolina enjoins the delay of the Clean Water Rule implementation 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.

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 to limit the application of the rule after the ruling by the U.S. District Court for the District of South Carolina in August.

Dec. 11, 2018 EPA and Army Corps release the proposed rule revising the definition of “waters of the United States.” The definition determines which waters and wetlands are protected by the Clean Water Act’s permitting programs. 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. The comment period closed on April 15, 2019 and 613,294 comments were submitted.

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, Nos. 04-1034 AND 04-1384. 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. Without a majority for either test, Clean Water Act coverage is unclear. Courts have generally applied both tests, predominantly relying on Justice Kennedy’s “significant nexus” approach.

June 29, 2015 EPA and USACE publish a final new 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 Aug. 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.

Oct. 9, 2015 The Sixth Circuit puts a nationwide hold on the rule.

Feb. 22, 2016 The Sixth Circuit holds that the Clean Water Rule challenge must be heard in the appeals courts and not in federal district courts. Each judge on the three-judge panel writes a separate opinion.

Jan. 13, 2017 The Supreme Court agrees to hear the question of which federal court should hear challenges to the Clean Water Rule.

Trump Era

March 6, 2017 EPA and U.S. Army Corps of Engineers 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.

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.

June 27, 2017 EPA and Army Corps propose to rescind the Clean Water Rule and revert to the uncertainty that reigned before this rule was finalized. They propose to come up with a new rule at a later date to be based on Justice Scalia’s opinion in Rapanos with jurisdiction only over “relatively permanent, standing or continuously flowing bodies of water” connected to navigable rivers, and connected wetlands.

July 2017 EPA and USACE publish the proposal to rescind the rule in the Federal Register. A comment period ends on Aug. 28, 2017, but is extended to Sep. 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, 2018 The Supreme Court rules that challenges to the Obama-era Clean Water Rule (finalized in 2015) must be heard in district courts, rather than appeals courts. It is unclear what effect this has on an October 2015stay the 6th Circuit court put on the 2015 rule. However, it could mean that the 6th Circuit’s stay of the rule cannot stand and thus that the rule is in effect in all but 13 states that are under a separate stay from a North Dakota district court.

Feb. 6, 2018 EPA finalizes a rule that delays the effective date of the 2015 Obama administration rule for two years, to Feb. 6, 2020. That same day New York Attorney General Schneiderman leads a multi-state lawsuit against EPA’s two year delay. Two coalitions of environmental groups sue EPA over the delay as well. The states’ lawsuit is filed in U.S. District Court for the Southern District of New York, case no. 1:18-cv-1030. One of the environmental groups’ lawsuits is also filed in the Southern District of New York, while the other is filed in the US District Court for the District of South Carolina, Charleston Division.

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 WOTUS delays if their concerns are not addressed within 60 days.

Feb. 28, 2018 The Sixth Circuit lifts its 2015 stay of the rule. The EPA two-year delay, however, is still in effect.

March 30, 2018 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 rules that the Trump administration’s request to delay litigation until February 2019 of a lawsuit initiated by 13 states opposing WOTUS when the rule was published in 2015, is unwarranted, and litigation will continue.

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 rule that delays implementation of the Clean Water Rule. The 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 substance of the Clean Water Rule itself.

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.

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.

June 15, 2018 The 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 The EPA and Army Corps issue a supplemental notice of proposed rulemaking to the July 2017 proposal to repeal the 2015 Clean Water Rule, defining “waters of the United States.” 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 Aug. 13, 2018.

Aug. 13, 2018 Twelve state attorneys general submit comments on the supplemental notice of proposed rulemaking that proposed to repeal the Clean Water Rule and put the pre-2015 regulations back in place while the new rule is finalized. 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 of the Clean Water Rule implementation 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.

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 to limit the application of the rule after the ruling by the U.S. District Court for the District of South Carolina in August.

Nov. 26, 2018 the United States District Court for the Western District of Washington holds that the EPA erred 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.

Dec. 11, 2018 EPA and Army Corps release the proposed rule revising the definition of “waters of the United States.” The definition determines which waters and wetlands are protected by the Clean Water Act’s permitting programs. 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. 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.

Feb. 4, 2019 California is preparing to finalize new regulations for wetlands protection which have been in progress for over 10 years, since the Supreme Court’s decision in Rapanos 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 the Army Corps of Engineers 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 new rule and the administration’s opposition to the Clean Water 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. 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.

March Colorado files a motion to withdraw from a challenge to the 2015 Clean Water Rule. 

March 26, 2019 The U.S. District Court for the Southern District of Ohio denied 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 to the Constitution, but the rule will remain in effect in Ohio and Tennessee while the litigation progresses and the EPA works to finalize its proposed rule to replace the Clean Water Rule. The case is Ohio v. United States Environmental Protection Agency, case number 2:15-cv-02467.

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 Nov. 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. The case is Washington Cattlemen’s Association v. United States Environmental Protection Agency et al., case number 2:19-cv-00569, in the U.S. District Court for the Western District of Washington.

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.

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.

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 the Army Corps.

As of May 29, 2019, the 2015 Clean Water Rule defining WOTUS is in effect in 23 states. The status of the rule in New Mexico is being clarified as 10 counties in the state are currently involved in litigation against the regulation. Source: Claudine Hellmuth/E&E News.

For More Information

See Save EPA’s WOTUS page as well as their pages on the proposed two-year delay and the next step in the repeal/replace proposal.