The Trump administration is expected to announce a new proposed definition of “waters of the United States” (WOTUS) which would reverse the expansions adopted under the Obama administration’s controversial WOTUS rule, significantly narrowing the number of waterways and wetlands that fall within the jurisdictional scope of the Clean Water Act (CWA).
The CWA prohibits the discharge of any pollutants, including dredged or fill material, into “navigable waters,” meaning the waters of the United States or WOTUS. The interpretation of which waters constitutes WOTUS, and whether the term includes waterbodies such as seasonal tributaries which flow only as a result of rainfall or melting snowpack, ephemeral streams, or isolated wetlands not physically connected to larger rivers and streams, has been the subject of contentious debate, including Supreme Court challenges, and multiple Circuit Court and District Court challenges across the country.
In 2015, the Obama Administration’s Environmental Protection Agency (EPA) promulgated an expansive new definition of WOTUS, Final Rule, 90 Fed. Reg. 37,054 (June 29, 2015) (2015 Rule), which is currently the subject of extensive ongoing litigation. The 2015 Rule significantly increased the number of waters afforded CWA protection, providing coverage if a particular waterway or wetland had a “significant nexus” to traditionally jurisdictional waters, in line with Justice Kennedy’s opinion regarding the waters covered by the CWA in Rapanos v. United States, 547 U.S. 715 (2006). The 2015 Rule would have enveloped nearly 60 percent of the nation’s waterbodies.
The Trump administration argues that the 2015 Rule extends the CWA’s reach beyond Congressional intent, and has pursued several avenues to roll back the Obama-era rule. It has adopted a two-step approach to amending the definition, first repealing the definition adopted under the Obama administration (Step 1), and then revising the definition to reflect the principles outlined by Justice Scalia in the Rapanos plurality opinion (Step 2). On June 15, 2018 and June 29, 2018, the EPA and United States Army Corps of Engineers (Corps) issued notices of proposed rulemaking to repeal the 2015 Rule and its definition of WOTUS. A pre-proposal docket for public comment on the appropriate scope of the revised proposal was opened on August 28, 2017, and closed on November 28, 2017. A revised proposal reportedly has been under review by the White House Office of Information and Regulatory Affairs under mandatory pre-publication review. The Trump administration’s EPA and Corps also finalized a rule on February 6, 2018, delaying the effectiveness of the 2015 Rule until February 6, 2020, which was recently set aside by a South Carolina court allowing the 2015 Rule to become effective in roughly half the states.
Recent public remarks from EPA’s deputy water chief, Lee Forsgren, indicate that a Trump-era rule may be released in mid-December 2018. Talking points suggest that, as expected, the new rule would apply the late Supreme Court Justice Antonin Scalia’s concurrence test articulated in Rapanos, extending the CWA only to waters and wetlands with a “continuous surface connection” to nearby rivers and streams that are “physically and meaningfully connected.” The scope of the term “physically and meaningfully connected” may be another point that the Trump-era rule seeks to define. Although the particulars of the proposal are not yet available, it is likely that the new rule would not cover all ephemeral streams and it is expected that the upcoming rule would exclude many of the waterbodies that were incorporated by the expanded definition in the 2015 Rule.