Overview of the Army Corps and EPA Rule to Define “Waters of the United States” (WOTUS) and Recent Developments

Overview of the Army Corps and EPA Rule to Define “Waters of the United States” (WOTUS) and Recent Developments

Updated October 22, 2018
Overview of the Army Corps and EPA Rule to Define “Waters
of the United States” (WOTUS) and Recent Developments
Overview: What Is “WOTUS”?
interpretive questions, and diverse stakeholders requested a
In June 2015, the Army Corps of Engineers and
formal rulemaking to revise the existing rules.
Environmental Protection Agency (EPA) published the
Clean Water—or “Waters of the United States”—final rule
What Is in the Clean Water Rule?
(80 Federal Register 37053), which revised regulations
The 2015 final rule retained much of the structure of the
defining the scope of waters protected and regulated under
agencies’ prior definition of WOTUS. It focused on
the Clean Water Act (CWA). Discharges to waters,
clarifying the regulatory status of waters with ambiguous
including wetlands, require a CWA permit (e.g., pollutants
jurisdictional status following the Supreme Court’s rulings,
from factories or sewage treatment plants and dredging and
including isolated waters and streams that flow only part of
filling of spoil material through mining or excavation). The
the year and nearby wetlands. Per the final rule’s preamble,
legal and policy questions regarding the geographic limit of
the Corps and EPA used Justice Kennedy’s significant
CWA jurisdiction and the consequences of restricting or
nexus standard in developing the rule, as well as the
expanding that limit have challenged regulators, developers,
plurality standard in establishing boundaries on the scope of
landowners, and policymakers for decades.
jurisdiction. The final rule identified categories of waters
that are and are not jurisdictional, as well as waters that
Background of the Rule
require a case-specific evaluation. Under the final rule:
The CWA protects “navigable waters,” which it defines as
“the waters of the United States, including the territorial
 Tributaries to the nation’s traditional navigable waters,
seas.” Waters need not be truly navigable to be subject to
interstate waters, the territorial seas, or impoundments
CWA jurisdiction. The act’s single definition of “navigable
of these waters would be jurisdictional per se. All of
waters” applies to the entire law, including Section 301 (the
these waters were jurisdictional under pre-2015 rules,
federal prohibition on pollutant discharges except in
but tributary was newly defined in the final rule.
compliance with the act), Sections 402 and 404 (permit

requirements), and Section 309 (enforcement). The CWA
Waters—including wetlands, ponds, lakes, and similar
gave the Corps and EPA the authority to define the term
waters—that are adjacent to traditional navigable
waters of the United States in regulations, which they have
waters, interstate waters, the territorial seas,
done several times, most recently in 1986, 1988, and 2015.
jurisdictional tributaries, or impoundments of these
waters would be jurisdictional by the final rule. The
The Corps and EPA proposed revisions to the regulations in
final rule also put some boundaries on “adjacency.”
2014 in light of two Supreme Court rulings (Solid Waste
 Some types of waters—but fewer than under practices
Agency of Northern Cook County v. U.S. Army Corps of
used prior to the 2015 rule—would remain subject to a
Engineers, 531 U.S. 159 (2001); and Rapanos v. United
case-specific evaluation of whether or not they meet the
States, 547 U.S. 716 (2006)). Both interpreted the
standards for federal jurisdiction.
regulatory scope of the CWA more narrowly than
previously, but they created uncertainty about the
 Certain waters would be excluded from CWA
appropriate scope of waters that are protected by the CWA.
jurisdiction. Some were restated exclusions under pre-
The Court’s decision in Rapanos, split 4-1-4, yielded three
2015 rules (e.g., prior converted cropland); some have
different opinions. The four-Justice plurality decision,
been excluded by practice and would be expressly
written by Justice Scalia, said that the dredge and fill
excluded by rule for the first time (e.g., groundwater and
provisions in the CWA apply only to wetlands connected to
some ditches). Some were new in the final rule (e.g.,
relatively permanent bodies of water (streams, rivers, lakes)
stormwater management systems). The rule did not
by a continuous surface connection. Justice Kennedy,
affect existing statutory exclusions: exemptions for
writing alone, demanded a “significant nexus” between a
existing “normal farming, silviculture, and ranching
wetland and a traditional navigable water, using a case-by-
activities” and for maintenance of drainage ditches
case test that considers ecological connection. Justice
(CWA §404(f)), as well as for agricultural stormwater
Stevens, for the four dissenters, would have upheld the
discharges and irrigation return flows (CWA §402(l)).
existing reach of Corps/EPA regulations.
Issues and Controversy
In light of those rulings, the agencies issued guidance in
Much of the controversy since the Supreme Court’s rulings
2003 and 2008 to identify categories of waters that
has centered on instances that have required CWA permit
remained jurisdictional or not jurisdictional and required a
applicants to seek a time-consuming, case-specific analysis
case-specific analysis to determine whether jurisdiction
to determine if CWA jurisdiction applies to their activity.
applies. The guidance documents did not resolve all
The Corps and EPA’s stated intention in proposing the rule
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Overview of the Army Corps and EPA Rule to Define “Waters of the United States” (WOTUS) and Recent Developments
was to clarify questions of CWA jurisdiction in view of the
Industry groups, more than half the states, and several
rulings while reflecting their scientific and technical
environmental groups filed lawsuits challenging the rule in
expertise. Specifically, they sought to articulate categories
multiple federal district and appeals courts. An appeals
of waters that are and are not protected by the CWA, thus
court ordered a nationwide stay of the rule in October 2015
limiting the water types that require case-specific analysis.
and later ruled that it had jurisdiction to hear consolidated
challenges to the rule. In January 2018, the Supreme Court
Industries that are the primary applicants for CWA permits
unanimously held that federal district courts, rather than
and agriculture groups raised concerns over how broadly
appellate courts, are the proper forum for filing challenges
the proposed rule would be interpreted. They contended
to the rule. Accordingly, on February 28, 2018, the appeals
that the proposed definitions were ambiguous and would
court vacated its nationwide stay. However, in anticipation
enable agencies to assert broader CWA jurisdiction than is
of a possible lift of the stay, the Corps and EPA had
consistent with law and science. The final rule added and
proposed a rule that added an “applicability date” to the
defined key terms, such as tributary and significant nexus,
2015 rule—delaying implementation until February 2020—
and modified the proposal in an effort to improve clarity.
which they finalized on February 6, 2018. Environmental
groups and states filed lawsuits challenging the rule, and on
Some local governments that own and maintain public
August 16, 2018, a district court issued a nationwide
infrastructure also criticized the proposal. They argued that
injunction of the rule. As a result, the 2015 Clean Water
it could increase the number of locally owned ditches under
Rule is now in effect in 22 states. It will remain in effect
federal jurisdiction because it would define some ditches as
unless, for example, a district court issues a nationwide stay
WOTUS under certain conditions. Corps and EPA officials
or the Administration finalizes its proposed rule to rescind
asserted that the proposed exclusion of most ditches would
the 2015 rule (see below). The other 28 states are covered
decrease federal jurisdiction, but the issue remained
by three district court injunctions issued on the 2015 rule.
controversial. The final rule expressly excluded stormwater
management systems and structures from jurisdiction.
The Administration has also taken steps to rescind and
revise the 2015 rule. In February 2017, President Trump
Many states expressed support for a rule to clarify the scope
issued an executive order directing the Corps and EPA to
of CWA jurisdiction, but there was no consensus on the
review and rescind or revise the rule and to consider
proposed or final rule. Some were largely supportive; others
interpreting the term navigable waters as defined in the
believed the agencies did not adequately consult with states.
CWA in a manner consistent with Justice Scalia’s opinion
in Rapanos. In July 2017, the agencies published a
Environmental groups supported the agencies’ efforts to
proposed rule that would “initiate the first step in a
protect waters and reduce uncertainty. Still, some argued
comprehensive, two-step process intended to review and
that the proposal should be strengthened—for example, by
revise the definition of ‘waters of the United States’
designating additional categories of waters and wetlands
consistent with the Executive Order.” The first step
(e.g., prairie potholes) as categorically jurisdictional. The
proposes to rescind the 2015 rule and re-codify the
final rule did not do so. Instead, such waters would require
regulatory definition of WOTUS as it existed prior to the
case-specific analysis to determine if jurisdiction applies.
rule. In July 2018, the agencies published a supplemental
notice of proposed rulemaking to solicit comment on
Corps and EPA officials under the Obama Administration
additional considerations supporting the agencies’ proposed
defended the proposed rule but acknowledged that it raised
repeal. According to EPA, the agencies are continuing to
questions they believed the final rule clarified. In their
review comments on the step one rule and have held
view, the final rule did not protect any new types of waters
listening sessions and solicited recommendations to develop
that were not protected historically, did not exceed the
a proposed step two rule. Observers largely agree that the
CWA’s coverage, and would not enlarge jurisdiction
order and ensuing agency actions indicate a move toward
beyond what is consistent with the Supreme Court’s rulings
narrowing the CWA’s jurisdictional scope.
and scientific understanding of significant connections
between small and ephemeral streams and downstream
Actions in the 115th Congress
waters. The agencies asserted that they had addressed
Among other WOTUS measures, H.R. 1105 would repeal
criticisms of the proposed rule by defining tributaries more
the rule, while H.R. 1261 would narrow the definition of
clearly, better defining how protected waters are significant,
waters subject to CWA jurisdiction. Members in the House
and preserving agricultural exclusions and exemptions.
and Senate have proposed resolutions expressing the sense
that the rule should be withdrawn or vacated (H.Res. 152
What Is the Current Status?
and S.Res. 12). Two House-passed appropriations bills
Issuance of the final rule did not diminish concerns. Many
(H.R. 3219 and H.R. 3354) contain provisions that would
groups contended that the rule did not provide needed
authorize withdrawal of the rule “without regard to any
clarity, that its expansive definitions made it difficult to
provision of statute or regulation that establishes a
identify any waters that would fall outside the boundary
requirement for such withdrawal” (e.g., the Administrative
distances established in the rule, and that the threshold for
Procedure Act). The House-passed version of the farm bill
determining “significant nexus” was set so low that
(H.R. 2) includes an amendment to repeal the rule.
virtually any water could be found to be jurisdictional. The
final rule would impose costs, critics said, but have little or
Laura Gatz, Analyst in Environmental Policy
no environmental benefit. Environmental groups were
supportive but also faulted parts of the final rule.
IF10125
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Overview of the Army Corps and EPA Rule to Define “Waters of the United States” (WOTUS) and Recent Developments

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