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There has been multiple blog posts over the history of this site tracking the long and arduous processing of defining federally protected waters under the Clean Water Act.  The U.S. Supreme Court has taken up the issue on multiple occasions, perhaps most significantly in Rapanos v. United States, 547 U.S. 715 (2006) where Justice Kennedy created the “significant nexus” test for determining whether streams and/or wetlands were protected under the Clean Water Act.  The plurality decision in Rapanos along with Justice Kennedy’s Significant Nexus Test federally protect any waters that:

  • Plurality Test– are relatively permanent, standing or continuously flowing bodies of water, including those deemed traditionally navigable waterways (i.e. “traditional jurisdictional water”); and
  • Significant Nexus Test– those waters that alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical or biological integrity of a traditional jurisdictional water;

Obama 2015 WOTUS Rule and Current Court Challenges

Due to the uncertainty of applying the case-by-case “significant nexus test,” in 2015 the Obama Administration proposed the Waters of the United States (WOTUS) rule to clearly define the extent of federal jurisdiction under the Clean Water Act.  Under WOTUS, a federally protected tributary was defined to include:

  • those that can have perennial, intermittent or ephemeral flow;
  • Has a defined bed, bank and ordinary high water mark (a term defined under existing regulations);
  • Contributes flow, either directly or through another water, to as jurisdictional water; and
  • Or, is part of a network that drains to a jurisdictional water

WOTUS was seen to broaden federal jurisdiction over waterways.  The WOTUS rule was challenged immediately.  Various suits have been filed in federal district courts around the country.  Some challengers were successful in obtaining preliminary injunctions that prevented enforcement of WOTUS in a total of 28 states.  While WOTUS remains in effect in the remaining 22 states.

In 2017, the Trump Administration announced its intention to unwind the WOTUS rule and replace it with a new rule defining the extent of federal jurisdiction. The Trump Administration implemented what was deemed the “Suspension Rule” which delayed the effectiveness of WOTUS until 2020 to give it time to finalize its own rulemaking defining the scope of the Clean Water Act.

However, two recent Court decisions vacated the Suspension rule nationwide–Puget Soundkeeper Alliance, et al., v. Wheeler, et al., and South Carolina Coastal Conservation League, et al. v. Wheeler, et al.. —which held that EPA and the Army Corps of Engineers failed to comply with the Administrative Procedure Act when it issued the rule suspending WOTUS for two years.  These rulings mean that WOTUS remains effective in the 22 states where a prior preliminary injunction has not been obtained staying the effectiveness of the rule.

Trump Administration Proposes to Narrow the Definition of Federally Protected Waterways

On December 11, 2018, the Trump Administration released its draft rule defining “Waters of the U.S.” (Trump Proposed WOTUS) setting the proposed limits of federal jurisdiction under the Clean Water Act.  At the outset, the proposed rule states federally protected waters “encompass relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or that have a specific connection to traditional navigable waters, as well as wetlands abutting or having a direct hydrologic surface connection to those waters.”  The rule states it intends the new definition to establish “bright lines” as to what is regulated and not regulated to give greater certainty.  The proposed rule goes on to discuss various categories of federally protected waters:

  • Traditional Navigable Waters and Territorial Seas– generally, all such waters are federally protected;
  • Interstate Waters– Proposal removes this category from the definition of “Waters of the U.S.;”
  • Impoundments- impoundments of regulated waterways will be federally protected;
  • Tributaries– a river, stream, or similar naturally occurring surface water channel that contributes perennial or intermittent flow to a traditional navigable water or territorial sea in a typical year either directly or indirectly through other jurisdictional waters (as well as adjacent wetlands).  The proposal excludes ephemeral streams;
  • Ditches- generally, the proposed rule would federally protect ditches that a) are traditional navigable waters; b) subject to the tides; c) constructed in a protect tributary or a protected wetland.  All other ditches are excluded from federal protection;
  • Lakes and Ponds– generally, the rule proposed to federally protect any lake and ponds that a) are traditional navigable waters; b) contribute to perennial or intermittent flow to traditional navigable waters; or c) are flooded by another federally protected waterway.
  • Wetlands- any wetlands that are adjacent to a) traditional navigable waterways; b) tributaries to traditional navigable waters; c) federally protected ditches; d) federally protected lakes and ponds; and e) federally protected impoundments.

The rule also includes “Waters and Features That are Not Waters of the United States.”  Some of the notable excluded categories include:

  • groundwater
  • farm and roadside ditches
  • features that only receive rain water; and
  • stormwater control features

What is Next?

Multiple challenges to the legality of WOTUS remain in the federal district courts.  The ultimate legality of the rule seems destined for the U.S. Supreme Court.  While the litigation continues, the 2015 WOTUS rule remains effective in nearly half the country, at least right now.

After the Trump Administration finalizes its rule redefining the scope of the Clean Water Act, challenges to that rule will also be filed in district courts.  One thing seems certain, uncertainty will persist and litigation will remain for years to come unless Congress were to pass legislation to define the extent of federal jurisdiction under the Clean Water Act and put an end to the litigation.