Waters of the United States: Where have we been and where are we going?

With a new administration in place, changes have recently occurred in Washington, D.C., on this issue.

Associate Professor & Specialist / Texas A&M University AgriLife Extension

The Clean Water Act, passed in 1972, gave federal jurisdiction to the Environmental Protection Agency (EPA) and Army Corps of Engineers (COE) over “waters of the United States.”

Essentially, a person who wishes to do certain activities in a water of the U.S. – such as point-source discharge of pollutants or discharging dredge and fill materials – must obtain a federal permit in order to do so. The act, however, offered no explanation of what was included in the definition of a “water of the United States.” Not surprisingly, this proved problematic.

For the next 40 years, it was left up to courts to address this issue. Several times, the issue of whether a wetland, isolated pond or other water fell within the federal jurisdiction made its way to the United States Supreme Court. This culminated in 2006 in a case called Rapanos v. U.S. Army Corps of Engineers.

In that case, the court had to determine whether wetlands lying near ditches or drains that eventually emptied into a traditional navigable waterway were considered WOTUS. In a complicated turn of events, the court landed 4-1-4.

Four justices, led by Antonin Scalia, held that the lower court applied the incorrect standard to determine if the wetlands were jurisdictional and articulated the correct standard as requiring a WOTUS to require a “relatively permanent, standing or continuously flowing body of water” traditionally recognized as “streams, oceans, rivers and lakes” that are connected to traditional bodies of water.

Four justices held the opposite, finding that the proper analysis was to defer to the COE if they reasonably concluded that a wetland may affect water quality of adjacent lakes and streams. Breaking the 4-4 tie was Justice Anthony Kennedy. He issued a concurring opinion where he agreed with the outcome reached by the Scalia group, but not their reasoning. He would analyze whether a wetland was a WOTUS by determining if it possessed a “significant nexus” to waters that are navigable in fact. This opinion offered little clarity and disputes continued.

2015 rule

In 2015, the EPA and COE promulgated a regulation that defined WOTUS under the Clean Water Act. Almost immediately, lawsuits began pouring in across the U.S., claiming that the new definition was overly broad and exceeded the scope of authority granted to the agencies pursuant to the Clean Water Act. The United States Court of Appeals for the 6th Circuit issued a nationwide stay on the rule, pending litigation.

Executive order

In February 2017, President Trump issued an executive order which required the EPA and COE to “rescind or revise” the 2015 rule. The order said the agencies should “consider interpreting” the term consistent with Justice Scalia’s opinion in Rapanos.

In June, the EPA announced it would be taking the first step to rescind the 2015 rule and to recodify the definition of WOTUS prior to the passage of the 2015 rule.

Where are we now?

Rescinding a rule already promulgated is not as simple as it may sound. The EPA has published a new proposed rule in the Federal Register, which essentially seeks to codify the rule as it was prior to the 2015 EPA rule being passed (and, due to the 6th Circuit stay, the approach currently in place across the U.S.).

Specifically, the proposed rule would rescind the 2015 approach and codify an approach consistent with the Rapanos Supreme Court decision, applicable case law and other long-standing agency practices.

The notice and comment rulemaking entered a new stage, which allowed the public to offer input on the new proposed rule. This period was open through Aug. 28, 2017. After that, the EPA plans to conduct a “substantive re-evaluation” of the definition of WOTUS and conduct notice and will likely propose a new rule after property notice and comment rulemaking occurs.

Meanwhile, the 2015 rule is not in force anywhere in the U.S., as the 6th Circuit stay remains in place. Thus, currently, the definition of WOTUS is governed by the pre-2015 rule that got us the complex decision in the Rapanos case.

Unfortunately, until a new rule is promulgated, landowners are left with trying to interpret the Rapanos decision in order to know whether federal permits are required on their land. Hopefully, the revised rule will offer more clarity and certainty for both the government and landowners alike.