The quick demise of the WOTUS rule

Update: On June 27, the U.S. Environmental Protection Agency and Army Corps of Engineers released a proposal to repeal the changes to the 2015 Clean Water Act definition of “Waters of the United States” (WOTUS), discussed in the article below, which appeared in TAD’s April/May newsletter.

The quick demise of the WOTUS rule
By Jim D. Bradbury, TAD legal counsel

Few areas of environmental law have been more embattled in recent years than the proposed changes to the Clean Water Act definition of “Waters of the United States” (WOTUS).

Under the Obama administration, the EPA and Army Corps of Engineers issued a new rule on May 27, 2015, intended to clarify WOTUS and its protections over tributaries, streams and wetlands. The true impact of the new rule was to expand the subjective “significant nexus” test from the earlier Rapanos v. United States decision of the U.S. Supreme Court, and in so doing, put forth a broad expansion of jurisdictional waters under the Clean Water Act while maintaining significant agency discretion in determining what can constitute a jurisdictional water under the Act.

Specifically, the rule included a new definition of “tributary” that includes any land feature that has a bed, banks, and ordinary high water mark and contributes water flow to a downstream WOTUS. Under this new definition, perennial, ephemeral and intermittent streams may be classified as jurisdictional waters. The new rule also captures adjacent waters, which may not be limited to waters that are located laterally to a water but may include waters connected by other water segments, whether or not those segments themselves are jurisdictional waters. The new rule captures all waters adjacent to jurisdictional waters, posing potentially significant impacts for agriculture. Agricultural operators and producers stand to lose useable land as well as face impacts to their ability to farm, build, dig, disturb and move dirt.

From the beginning, the new WOTUS rule was controversial. Numerous states and industry groups filed suit to challenge the rule and prevent its implementation. The rule was stayed pending the outcome of litigation, which is currently before the Sixth Circuit Court of Appeals.

More recently, implementation of the new WOTUS rule has come under intense scrutiny by an Executive Order issued by President Trump. In the Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule, President Trump set forth a new policy on clean water that emphasizes economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the States. The President ordered the EPA and Army Corps of Engineers to review the WOTUS rule and all other orders, rules, regulations, guidelines, or policies implementing the rule for consistency with the newly-stated policy and ordered them to rescind or revise the rule or other orders, rules, regulations, guidelines or policies to ensure consistency with this policy. Finally, the Executive Order urged the EPA and Army Corps to interpret the term “navigable waters” in a manner consistent with Justice Antonin Scalia’s opinion in Rapanos v. United States, which focused on the “hydrologic connection” of waters and found that non-navigable waters become jurisdictional only if they exhibit a relatively permanent flow, such as a river, lake, or stream.

While the litigation over the rule continues, the President’s order effectively halts implementation of the rule and will likely signal its ultimate revocation. It remains to be seen whether the EPA and Army Corps will go another step further and issue a new rule narrowing the definition of WOTUS and embracing Justice Scalia’s hydrologic connection test for jurisdictional waters. One thing is certain, the uncertainty over the scope of the Clean Water Act will continue for the foreseeable future. ▪




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