Action by the Courts, Administration, and Congress
State officials in 31 states, along with dozens of industrial, agriculture and environmental groups, filed legal challenges to the 2015 WOTUS rule. In August 2015, a federal district court in North Dakota blocked implementation of the WOTUS rule in 13 states, and in October of 2015, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the rule.
In the 114th Congress, both the House and the Senate weighed in against the rule, passing with bipartisan support the Regulatory Integrity Protection Act (H.R. 1732) and a Resolution of Disapproval of the Waters of the U.S. Rule (S.J. Res. 22), both of which would prohibit federal bureaucrats from implementing the rule. Then-President Obama vetoed the joint resolution in January 2016.
At the beginning of his term, President Trump issued an executive order instructing EPA and the Corps to review and, as necessary, revise the 2015 rule in light of his administration’s objectives of promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the states under the Constitution.
The agencies responded in July 2017 by proposing to rescind the illegal 2015 WOTUS rule and hosted a dozen public meetings from September through November to give states, land owners, small businesses and other groups the opportunity to provide input on a future WOTUS rule. According to the White House Office of Management and Budget’s Office of Information and Regulatory Affairs, a final rule recodifying the WOTUS definition that existed prior to the 2015 rule is expected in March 2019 and a final rule proposing a WOTUS definition is expected by September 2019.
Recodifying the WOTUS definition is more important than ever because in January 2018, the Supreme Court issued a unanimous ruling in the case of National Association of Manufacturers v. Department of Defense, stating that challenges to the WOTUS rule will be heard in district courts. As a result, the Sixth Circuit’s nationwide stay was lifted, though the North Dakota District Court stay that protects 13 states remained in place and in June, a federal judge in the Southern District of Georgia granted a preliminary injunction against the 2015 rule to a coalition of 11 states led by Georgia.
However, in August 2018, a federal judge in the U.S. District Court for the District of South Carolina in Charleston ruled that the 2015 WOTUS rule could go into effect in the 26 states not covered by the injunctions granted in the North Dakota and Georgia cases. While several states have since been granted injunctions and the South Carolina ruling is being appealed, these recent legal developments – including attempts in court rulings to reinstate the 2015 rule nationwide while every court that has examined the 2015 rule has found that it is likely to be unlawful – underscore the need for a clear and concise new rule that avoids patchwork implementation and regulatory confusion.
On December 11, 2018, the EPA and the Army Corps of Engineers released its proposal for a clear and understandable definition of “waters of the United States” that clarifies federal authority under the Clean Water Act and provides state and local governments and the regulated community with the certainty to ensure clean water with clear rules. In announcing the release of the proposed rule, Acting EPA Administrator Andrew Wheeler said, “For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways. Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals.”
The new rule would provide six clear categories of waters of the United States:
- Traditional navigable waters
- Certain ditches
- Certain lakes and ponds
- Adjacent Wetlands
- Impoundments of waters of the United States
On February 14, 2019, the new rule was published in the Federal Register, beginning a 60-day public comment period.