By: Blair M. Gardner
The U.S. EPA and the Army Corps of Engineers published the repeal of the 2015 “Waters of the United States” (WOTUS) rule in the October 22 Federal Register. With this rulemaking, the agencies are restoring the 1986 rule that defined “waters of the United States” before the 2015 revision. The agencies’ announcement also marks the beginning of the end to one of the most contentious, protracted and heated debates over environmental policy in the last 25 years.
Congress defined “navigable waters” in the Clean Water Act as meaning the “waters of the United States including the territorial seas”. 33 USC §1362(7). Since the 1970’s the EPA and the Corps have defined “waters of the United States” to lend specificity to the waters included or excluded. The WOTUS definition was needed primarily to allow EPA and the states to implement the NPDES permit program under §402 of the Act and the Corps to enforce its § 404 dredge and fill program.
Ambiguity, however, has always been a hallmark of the definition. Since the 1980’s the U.S. Supreme Court has applied the definition to a variety of aquatic environments including wetlands adjacent to tidal waters (Riverside Bayview Homes v. Corps, 1985), sand and gravel excavations (Solid Waste Authority of Norther Cook County v. Corps, 2001), wetlands adjacent to a tributary stream (Rapanos v. United States 2006) and a peat bog (Corps v. Hawkes Co., 2016). With each decision the lower courts added evermore complexity to the application of the definition aided by administrations that fluctuated the activism of the federal agencies. This process culminated in the Obama Administration’s 2015 WOTUS Rule which effectively included all streambeds that reflected flow, however infrequent, and land if even occasionally soggy.
Not surprisingly, this resulted in a significant backlash from commercial sectors that had never come under the CWA jurisdiction of either the Corps or EPA. Since 2015, various federal district courts have enjoined the operation of the rule in about half of the states and territories. Following the 2016 election, the current administration embarked on what has been a two-year process to bring about both clarity and uniformity in the application of a common definition across the nation.
Effective December 23, the 1986 WOTUS rule that was replaced in 2015 will be reinstated. In its 45-page explanation, the Corps and EPA make clear that “the power conferred on the agencies under the CWA to regulate the ‘waters of the United States’ is grounded in Congress’ commerce power over navigation. The agencies can choose to regulate beyond waters more traditionally understood as navigable, including some tributaries to those traditional navigable waters, but must provide a reasonable basis grounded in the language and structure of the Act for determining the extent of jurisdiction.” (84 Fed. Reg. 56638). In the view of the current administration, the 2015 WOTUS Rule exceeded the agencies’ authority to regulate under the CWA.
In addition, any definition of WOTUS must “recognize and respect the primary responsibilities and rights of States to regulate their land and water resources. . . . The Supreme Court long ago recognized the distinction between federal waters traditionally understood as navigable and waters ‘subject to the control of the States.’ The Daniel Ball, (1870).’ Id. The states exercise plenary and unlimited authority over all water, including groundwater, within their boundaries, except for waters that are navigable in fact and therefore under the jurisdiction of the federal government. There can be little serious disagreement that this historical demarcation between federal and state authority was significantly changed by the 2015 WOTUS Rule.
EPA intends to move ahead with the promulgation of a new rule to define WOTUS. A proposed rule was published on February 14, 2019 (84 Fed. Reg. 4154). The agencies are currently reviewing more than 620,000 comments received in response. It is reasonable to assume that a final rule will be adopted sometime in 2020. The only confident prediction that one can make is that controversy over the final definition is unlikely to end regardless of what rule is ultimately adopted.