Waters of the United States rule

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Under the Clean Water Act, the U.S. Army Corps of Engineers operates a permit program to keep unwanted material, commonly known as dredged and fill materials, out of wetlands and other waters of the United States. The extent to which bodies of water are part of the legal definition of waters of the United States has been subject to political and legal debate since the act's passage. The regulatory uncertainty led the Environmental Protection Agency (EPA) in 2015 to clarify which bodies of water are under federal jurisdiction. This decision affects how far the government may go in regulating private property and particular bodies of water. The EPA's clarification regarding the bodies of water under federal jurisdiction is known as the Waters of the United States rule, which applies to any private individual, group, or business whose activities could affect these waters.

On October 9, 2015, the United States Court of Appeals for the 6th Circuit temporarily blocked the rule nationwide to deliberate whether the rule was permissible under federal law. Prior to this decision, the United States District Court for the District of North Dakota issued an order temporarily blocking the EPA's water rule in 13 states in August 2015.

Under the Trump administration

• On February 28, 2017, President Donald Trump (R) signed an executive order directing the EPA and the U.S. Army Corps to rewrite the rule, arguing that the Clean Water Act applies solely to navigable waters that affect interstate commerce rather than the waters defined in the rule.
• On June 27, 2017, the EPA formally proposed to repeal the rule.
• On September 12, 2019, after receiving public comments, EPA Administrator Andrew Wheeler signed a final rule repealing the 2015 rule. The Trump administration rule restored the pre-2015 definition of "waters of the United States" as refined by agency guidance documents, court decisions, and agency practice. The repeal limits the amount of control the EPA may exercise over waterways. According to the final rule signed on September 12, federal agencies were considering 620,000 public comments related to further proposed regulations designed to replace the pre-2015 definition of "waters of the United States."
• On April 21, 2020, the Trump administration implemented its new definition of waters that fall within the scope of those regulated under the Clean Water Act (CWA). The new waters of the United States (WOTUS) definition, effective June 22, 2020, narrows federal jurisdiction over intrastate waters as well as groundwater, roadside ditches, converted cropland, stormwater controls, and waste treatment systems. Click here to read more.

Background

Under the Clean Water Act, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) are responsible for regulating navigable bodies of water defined as waters of the United States (these waters also include the territorial seas). Federal permits are required for any private individual, group, or business whose activities could affect these waters. Under a permit program, the Corps regulates discharges of dredged and fill materials into these waters; the EPA (through delegated state agencies) regulates all other pollutant discharges under the act. The Corps' dredge and fill permitting program applies to regular land use activities while the EPA's National Pollutant Discharge Elimination System (NPEDES) generally applies to industrial and municipal operations.

In May 2015, the EPA released the Clean Water Rule, also known as the Waters of the United States rule. The rule applies to both the Corps' and the EPA's regulatory actions. The aim of the rule is to clarify the federal government's regulatory authority under the Clean Water Act over streams, wetlands, rivers, and lakes. The final rule emerged after years of ambiguity regarding the legal meaning of the term waters of the United States and thus the extent of the federal government's authority. Citing executive authority under the Clean Water Act, President Barack Obama (D) directed the EPA to clarify the meaning of the law's terms regarding bodies of water.

Overview of the rule

Under the EPA's rule, approximately 60 percent of previously unregulated bodies of water will be regulated as waters of the United States. The EPA and the U.S. Army Corps of Engineers regulate these waters through a permit program. EPA Administrator Gina McCarthy in 2015 argued that the rule expands the amount of water already regulated under the Clean Water Act by approximately 3 percent. In justifying the rule, the EPA argued that the aim of the rule is establish a "more precisely defined, more predictable" guide for regulating waters and requiring permits from individuals, businesses, and industries.

The rule covers the following areas:

• Tributaries are regulated if they "show physical features of flowing water," such as a bank or ordinary high water mark.
• Waters adjacent to rivers and lakes are regulated if the water affects the chemical, physical, or biological integrity of a body of water downstream and if the EPA considers these impacts to be more than insignificant or insubstantial.
• Specific regional waters such as prairie potholes, bays, coastal prairie wetlands, and similar waters fall under the rule if they are adjacent to jurisdictional tributaries that are already regulated under the Clean Water Act. Certain specialized wetlands are regulated if they significantly affect the chemical, physical, or biological integrity of other bodies of water, such as navigable-in-fact waters, interstate waters, and the territorial seas.
• Ditches constructed out of streams or that function like streams are regulated under the rule. These include ditches that drain wetlands. The EPA excluded the regulation of ditches that flow only after rain falls, ditches that are not hydrologically connected to other regulated waters, and ditches that flow more intermittently over a certain period of time.

If the EPA and the U.S. Army Corps determine that projects involve any discharge of any pollutant into the waters covered under the rule, regardless of the environmental effects of the discharge, a federal permit is required from the individuals, businesses, or industries involved. Projects exempt from the permit process include regular farming and ranching activities, such as plowing and harvesting, as well as maintenance farm roads and irrigation ditches.

Court decisions

2015 appellate court decision

On October 9, 2015, the United States Court of Appeals for the 6th Circuit temporarily blocked the federal water rule nationwide. The Sixth Circuit went further than a prior federal court decision from August 2015 that temporarily blocked the rule's implementation in 13 states. In a 2-1 decision, the appellate court stayed the rule, arguing that there was significant legal debate over what waters are under federal jurisdiction. In addition, the court argued that there is a need to maintain temporary uniformity and clarity of current federal rules as legal challenges to the Waters of the United States rule proceeded. "A stay allows for a more deliberate determination whether this exercise of executive power ... is proper under the dictates of federal law," the court stated. The dissenting judge did not write on the merits of the states' challenge but questioned whether the appellate court had original jurisdiction to hear the case or whether the federal trial courts had jurisdiction.

West Virginia Attorney General Patrick Morrisey (R), one of the 18 attorneys general challenging the EPA's water rule, told the Associated Press, "This decision is a critical victory in our fight against this onerous federal overreach."

The EPA said it respected the court's decision but contended that the rule is legal. "The agencies respect the court's decision to allow for more deliberate consideration of the issues in the case and we look forward to litigating the merits of the Clean Water Rule," said EPA spokesperson Melissa Harrison.

Business groups such as the National Federation of Independent Business, a nonprofit association of 350,000 small business owners, supported the court's ruling. "The court very properly acknowledged that the [waters of the United States] rule has created a 'whirlwind of confusion' and that blocking its implementation in every state is the practicable way to resolve the deep legal question of whether it can withstand constitutional muster," the group said in a statement.

Environmental organizations such as the League of Conservation Voters, an environmental advocacy organization, disagreed with the court's decision. "We strongly disagree with this irresponsible decision that lets polluters continue to put the drinking water of one in three Americans at risk," said Madeleine Foote, a representative from the League of Conservation Voters.

2015 district court decision

In August 2015, Judge Ralph Erickson of the United States District Court for the District of North Dakota issued an order temporarily blocking the rule in 13 states. The states sued the EPA and the U.S. Army Corps of Engineers to halt the rule's implementation. Led by North Dakota Attorney General Wayne Stenehjem (R), who filed the request to stop the rule, the states argued that the rule went beyond the EPA's and U.S. Army Corps' delegated authority under the Clean Water Act and as a result infringed upon state governmental authority.

Judge Erickson argued that the EPA had exceeded the power granted to it under the Clean Water Act. In support of delaying the rule, Erickson wrote that the risk to the states from the rule's implementation was likely and that the delay was in the public interest. Along with the Sixth Circuit majority in the October 2015 decision, Erickson contended that the rule might be flawed because of the way it limited federal jurisdiction over bodies of water. Specifically, the rule stated that waters that otherwise affect the physical, chemical, or biological integrity of another body of water are not regulated if they are not within 4,000 feet of another regulated body of water. Similarly, the rule stated that waters that affect the integrity of another body of water are regulated if they are within 1,500 feet of another regulated body of water. These distances were challenged by states because they were not in the rule's original proposal. Further, a leaked internal U.S. Army Corps memo stated that the documents supporting the rule included "numerous inappropriate assumptions, with no connection to the data provided, misapplied data, analytical deficiencies, and logistical inconsistencies."

Joining North Dakota in the case were Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, South Dakota, and Wyoming. Nearly 20 lawsuits challenging the rule were filed as of November 2016.

Permit program background

A flood plain near the Sprague River in Oregon.

When an individual, business, or property owner undertakes construction-related activities near a navigable body of water, a permit from the U.S. Army Corps of Engineers is required. These activities may include anything generally related to construction or engineering, such as clearing land and stockpiling soil. Clear examples of a navigable water are lakes and rivers. A general permit allows someone to begin a minor or minimal impact project. General permits come in two types: nationwide and regional, both of which deal with similar activities. Nationwide permits are issued by the Corps and must be re-authorized every two years (although states coordinate with the Corps in the permitting process and may impose additional permit requirements consistent with state water quality standards). An individualized permit, which is more specific and requires more from the property owner, may also be required. The individual permit process may involve multiple inspections of someone's property before the land can be developed. The average processing time for a nationwide individual permit from the U.S. Army Corps in 2014 was between four months and 24 months depending on the impact and scale of the project. The Corps can require permits for several kinds of wet geographic areas, including areas that contain no pools or bodies of water but do contain water-saturated soil.

Supreme Court decision (2006)

In Rapanos v. United States (2006), the U.S. Supreme Court sought to answer whether a wetland that may occasionally empty into a tributary of a navigable water fell under the definition of waters of the United States. The U.S. Army Corps of Engineers issued a regulation declaring that a wetland can be regulated under the Clean Water Act if it was adjacent to a navigable water or a tributary of a navigable water. The federal government brought a civil suit against John Rapanos, a Michigan resident, for seeking to build a shopping center on his property and fill in three wetland areas. Rapanos argued that the Clean Water Act allows the government to regulate traditionally navigable waters, such as lakes and rivers, and not adjacent wetlands. The U.S. Court of Appeals for the Sixth Circuit affirmed a lower court decision upholding the Corps' regulation. Specifically, the courts sided with the federal government, which argued that the wetland areas on Rapanos' property can be regulated as adjacent wetlands under the Clean Water Act. Rapanos appealed to the U.S. Supreme Court.

The Supreme Court split 4-1-4 on the question of whether a wetland that may occasionally empty into a tributary of a navigable water fell under the definition of waters of the United States, though a five-vote plurality voided the Sixth Circuit's decision.

In an opinion joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, the late Justice Antonin Scalia argued that the term waters of the United States refers to "relatively permanent, standing or flowing bodies of water" and not to bodies of water with occasional or intermittent flows. In addition, the four justices contended that a hydrological connection between a wetland and a traditional navigable water like a lake or stream was insufficient to justify treating the wetland as a water of the United States. Instead, a wetland must have a continuous surface connection to a water of the United States that makes it "difficult to determine where the 'water' ends and the 'wetland' begins," Scalia wrote.

An example of a flood plain

Justice Anthony Kennedy wrote a separate concurring opinion in which he joined the above four justices in striking down the Sixth Circuit's decision but for different reasons. Kennedy argued that a wetland does not need to have a continuous surface connection to a traditionally navigable water to be regulated under the Clean Water Act. Kennedy contended that a wetland instead must have a significant nexus with a navigable water. Significant nexus means that a wetland must have a meaningful impact on the water quality of a navigable water. In conclusion, Kennedy wrote that the wetland areas on Rapanos' property could have been regulated if the Corps were to provide further evidence that the areas had a meaningful impact on the quality of navigable waters.

Justice John Paul Stevens wrote a dissenting opinion joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and David Souter. Stevens argued that the Corps' wetland regulations were a rational interpretation of the Clean Water Act and thus entitled to judicial deference. The dissenting justices contended that the federal government is permitted to include wetlands adjacent to traditionally navigable waters or tributaries of navigable waters under the Clean Water Act.

Debate over the rule

A vernal pool is subject to regulation under the Waters of the United States rule even if it is not adjacent to another water under federal jurisdiction.

Scope of the rule

The debate over the Waters of the United States rule has focused on the extent to which the federal government can regulate certain areas as bodies of water and thus require federal permits from property owners or developers that seek to alter their land. For example, a vernal pool, which is an area that is dry for most of the year, can be regulated under the rule, as well as vernal pools that are not adjacent to another water under federal jurisdiction. The U.S. Army Corps of Engineers could then require a permit from the owner or developer of these areas if he or she chooses to alter the land, including areas that are dry or clearly separated from another body of water.

This map shows the Federal Emergency Management Agency's 100-year effective floodplain for the area around Sacramento, California. A group opposed to the rule argued that much of the area in blue would require a permit from the government before any development could occur.

In 2015, the EPA argued that the rule would increase the number of regulated waters by 3 percent and would cost up to $162 million to $279 million per year. This estimate is based on the number of waters that prior federal rules would regulate if they were fully implemented. Proponents of the rule argued that the rule is necessary to protect water quality from potential pollutant discharges related to land development and to clarify which bodies of water fall under federal jurisdiction. Opponents of the rule argued that it would increase federal jurisdiction over previously unregulated areas, including areas that are dry or clearly separated from another body of water. Further, opponents argued that the EPA's cost estimate is misleading because portions of prior federal rules used to make the estimate were questioned or invalidated in court. As a result, the prior rules were not fully implemented. Thus, these opponents argued that the EPA's baseline to estimate the regulation of future areas paints an inaccurate picture of the rule's scope.

According to some opponents of the rule, a ditch, an area left unmentioned by the Clean Water Act, may be regulated if the banks of the ditch show evidence of an ordinary high water mark, according to opponents. According to the Pacific Legal Foundation (PLF), a conservative nonprofit legal organization that opposes the rule, the new definition would expand the EPA's power to regulate nearly all wet spots nationwide, such as roadside ditches, storm drains, and prairie potholes. The PLF further argued that the plan would infringe on the rights of state and local governments to manage their water resources. The PLF, whose attorneys served as counsel of record for Rapanos in the Rapanos v. United States case, contended that expanses of dry land could also be regulated as navigable waters. The PLF focused on the EPA's decision to regulate wetlands or other areas within or near floodplains. A floodplain is an area of land prone to flooding because of its proximity to rivers or streams that may have overflowed in the past. The rule would allow for the regulation of wetlands or land with other aquatic features that are adjacent to another body of water under federal jurisdiction or if the wetland or area affects the physical, chemical, and biological integrity of another regulated body of water. According to the PLF, the EPA's plan could increase the agency's jurisdiction over dry lands near cities, towns or farm regions. In other words, anyone looking to develop land considered to be a floodplain by the EPA would have to seek a federal permit. One example of a floodplain put forward by the PLF includes Sacramento, California, which falls under the floodplain of the Sacramento River. Under the EPA's plan, property owners in the area could be required to have a permit before developing their land. The map to the right shows the Federal Emergency Management Agency's 100-year effective floodplain for the area around Sacramento, California.

Congressional actions

The U.S. House Committee on Transportation conducted three hearings on the EPA's proposal in 2014. Additionally, the U.S. House passed legislation preventing the EPA's proposal from going into effect, but this legislation was not taken up by the United States Senate as of 2015.

On February 4, 2015, a joint hearing of the U.S. House Committee on Transportation and U.S. Senate Committee on Public Works was held on the EPA's proposal and its impact on state and local governments. The committees looked at the proposal's costs and the specific changes in the interpretation of the law that could affect landowners and developers. At the hearing, both committees, which are controlled by Republican members of Congress, had a majority of their members state that the EPA should withdraw its proposal. During the hearing, EPA Administrator Gina McCarthy answered questions about the proposal's impact on ranchers and farmers, stating that ditches, irrigated farmlands and smaller ponds would not fall under new regulations unless their flow into navigable waters was significant.

The chairman of the Senate Committee on Public Works, Sen. James Inhofe (R-Okla.), was skeptical that the EPA's proposal complied with the Clean Water Act. "Agencies can only carry out the authority that Congress gives them,” Inhofe said. “They can’t create it unilaterally, and that’s what I believe is happening now."

In April 2015, the U.S. House Committee on Transportation passed a bill asking the EPA and the U.S. Army Corps to withdraw their proposal to re-define the "waters of the United States" within 30 days. In addition, the bill would require the two agencies to consider all the public comments they received on their proposal and to reach a consensus with local and state governments. The bill passed by a vote of 36 to 22, and it was sponsored by Rep. Bill Shuster (R) and had more than 30 co-sponsors.

In May 2015, the United States House of Representatives voted to block the implementation of the EPA's rule. The bill would require the EPA to rescind its regulation and work with state and local governments before deciding upon a new one. The House bill was approved by a 261-155 vote. In October 2015, Sen. John Barrasso (R-Wyo.) introduced a bill in the Senate that would repeal the rule and require the EPA to re-write it under specific congressional guidelines. On November 3, 2015, the Senate voted 57-41 in favor of the bill, which was short of the 60 votes needed to move the legislation forward. Four Democratic senators, Heidi Heitkamp (N.D.), Joe Manchin (W.Va.), Joe Donnelly (Ind.) and Claire McCaskill (Mo.) joined Senate Republicans in support of repealing the rule. In May 2016, the U.S. Senate Subcommittee on Fisheries, Water, and Wildlife held a hearing on the rule's effects on property rights. The Obama White House vetoed the legislation.

Noteworthy events

Trump administration implements rule narrowing federal jurisdiction under the Clean Water Act (2020)

The Trump administration on April 21 implemented its new definition of waters that fall within the scope of those regulated under the Clean Water Act (CWA).

The new waters of the United States (WOTUS) definition, effective June 22, narrows federal jurisdiction over intrastate waters as well as groundwater, roadside ditches, converted cropland, stormwater controls, and waste treatment systems.

The new rule, according to the Federal Register, aims “to restore and maintain the integrity of the nation’s waters by maintaining federal authority over those waters that Congress determined should be regulated by the Federal government under its Commerce Clause powers, while adhering to Congress’ policy directive to preserve States’ primary authority over land and water resources.”

The U.S. Department of Defense (DOD) and the U.S. Environmental Protection Agency (EPA) proposed a revision of the definition of WOTUS in December 2018 to replace what the Trump administration considered to be the expansion of federal powers under the Obama administration’s interpretation of the Clean Water Act.

Opponents of the revision argue that the new WOTUS definition is too narrow and could risk pollution in Americans’ drinking water. Supporters of the revision believe that the Obama-era definition infringed on both individual property rights and state authority to regulate inland waters.

See also

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  Environmental policy in the U.S.

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  Energy policy in the U.S.

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  Endangered species policy

• State environmental policy
• Glossary of environmental terms

External links

• Search Google News for this topic
• U.S. Environmental Protection Agency homepage
• U.S. Army Corps of Engineers
• Code of Federal Regulations
• Federal Register