United States: President Trump Signs WOTUS Rule's Death Warrant

Last Updated: March 7 2017
Article by H. David Gold

On February 28, 2017, President Trump signed an Executive Order to begin the process of rescinding or revising the infamous Waters of the United States (or WOTUS) Rule. Years in the making, the WOTUS Rule was supposed to clarify which waterbodies fall under the permitting requirements of the US Army Corps of Engineers (Corps) and US Environmental Protection Agency (EPA) under the Clean Water Act.

Key Takeaways

  • The permitting regime that predated the WOTUS Rule is likely to remain in effect for years, as EPA and the Corps seek to formulate a new rule or rescind the WOTUS Rule. President Trump's Executive Order also called on the Attorney General to try to freeze ongoing litigation, which would preserve the current regime.
  • EPA and the Corps may apply existing WOTUS rules less aggressively in the current administration, so close calls are more likely to go in favor of the regulated community.
  • If a new rule eventually is issued and survives legal challenges, it is likely to encompass "relatively permanent" waterbodies with a "continuous surface connection" to traditionally navigable waters.


The Clean Water Act expressly regulates discharges to "navigable waters," which the statute defines as "waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). The scope of the terms "navigable waters" and "waters of the United States" is relevant under several Clean Water Act programs, including those regulating discharges of dredged or fill material under Section 404 (administered jointly by the Corps and EPA), discharges of pollutants from "point sources" under Section 402 (delegated to most states for permitting under the National Pollution Discharge Elimination System) and spills of oil and hazardous substances under Section 311.

In 1985, the US Supreme Court decided that the term "navigable waters" includes more than just waters that would be deemed "navigable" in the "classical" or traditional sense. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133 (1985).

But the scope of the terms "navigable waters" or "waters of the United States" has remained difficult to define. In Rapanos v. United States, 547 U.S. 715 (2006), the Supreme Court created two definitions. Under one definition, offered by Justice Scalia and endorsed by three other justices, "waters of the United States" are "relatively permanent" waters that hold a "continuous surface connection" to a traditionally navigable water. Under the second definition, posed by Justice Kennedy in a concurring opinion, "waters of the United States" must have a "significant nexus" to a traditionally navigable water.

Federal courts have inconsistently applied Rapanos.

  • The 1st, 3rd and 8th Circuits have decided that either the "relatively permanent" definition or the "significant nexus" definition can be used. United States v. Johnson, 467 F.3d 56 (1st Cir. 2006); United States v. Donovan, 661 F.3d 174 (3d Cir. 2011); United States v. Bailey, 571 F.3d 791 (8th Cir. 2009).
  • The 11th Circuit has held that only the "significant nexus" definition can be used. United States v. Robison, 505 F.3d 1208, 1221–22 (11th Cir. 2007).
  • The 4th, 6th, 7th and 9th Circuits have used the "significant nexus" definition to resolve cases but left open the possibility of using the "relatively permanent" definition as an alternative. See Precon Development Corporation, Inc. v. United States Army Corps of Engineers, 633 F.3d 278, 288 (4th Cir. 2011); United States v. Cundiff, 555 F.3d 200, 210 (6th Cir. 2009); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006); Northern California River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007).

In 2008 guidance, EPA and the Corps stated that Rapanos gave them regulatory jurisdiction over a waterbody if either definition was met. EPA/Corps, Clean Water Act Jurisdiction Following the US Supreme Court's Decision in Rapanos v. United States & Carabell v. United States (Dec. 2, 2008).

But according to EPA and the Corps, "Congress, developers, farmers, state and local governments, energy companies, and many others requested new regulations to make the process of identifying waters protected under the [Clean Water Act] clearer, simpler, and faster." 80 Fed. Reg. 37056 (June 29, 2015).

So, after preparing a 1,200-page scientific report on the "connectivity" of waters and convening EPA's Science Advisory Board to review the report, EPA and the Corps issued the first draft of the WOTUS Rule in March 2014. The agencies received over a million public comments. While some claimed that the Rule did not go far enough, the loudest critics called the Rule an inappropriate expansion of federal jurisdiction. Congress sought to prevent the Rule's progress, and the House passed the Waters of the United States Regulatory Overreach Protection Act of 2014.

The final WOTUS Rule was published on June 29, 2015. Despite the agencies' efforts to scale back the draft rule, states, business interests and environmental groups filed suits challenging the final WOTUS Rule in federal district courts and courts of appeal. On August 27, 2015, a federal judge enjoined the Rule in 13 western states. North Dakota v. United States EPA, 127 F. Supp. 3d 1047, 1053 (D.N.D. 2015). The Rule otherwise became effective on August 28, 2015. Then, on October 9, 2015, the Sixth Circuit stayed the Rule nationwide. In re EPA, 803 F.3d 804 (6th Cir. 2015). On January 13, 2017, the US Supreme Court granted a petition to consider whether the Sixth Circuit could decide the Rule's fate. National Association of Manufacturers v. Department of Defense, No. 16-299 (U.S. Jan. 13, 2017) (cert. granted). (Under the Clean Water Act, certain types of cases must be brought directly in courts of appeals and cannot be brought in federal district courts.) The Supreme Court seemed eager to constrict the Rule, with certain justices opining in United States Army Corps of Eng'rs v. Hawkes Co., Inc., 136 S.Ct. 1807 (2016), that "the reach and systemic consequences of the Clean Water Act remain a cause for concern."

In the end, the scope of the WOTUS Rule did not represent much of a departure from the agencies' existing practices. And the Rule would have categorically excluded certain types of waters that previously could have been construed (and now may continue to be construed) as jurisdictional. Despite some assertions to the contrary, the WOTUS Rule expressly excluded "puddles." 80 Fed. Reg. 37099.

When he signed the Executive Order, President Trump called the WOTUS Rule "a horrible, horrible rule" and "one of the worst examples of federal regulation . . . truly run amok." Remarks by President Trump at Signing of Waters of the United States (WOTUS) Executive Order (Feb. 28, 2017). Under the Executive Order, EPA and the Corps must publish for notice and comment a proposed rule rescinding or revising the Rule. Further, the order requires EPA and the Corps to consider defining "navigable waters" based on Justice Scalia's "relatively permanent" waters test from Rapanos.


The WOTUS Rule was stayed nationwide shortly after it became effective. So, while it generated a tidal wave of political and legal action, it did not move the needle toward the Clean Water Act's objective "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Rescinding or revising the Rule will require notice and comment, a time-consuming process that will likely be protracted by litigation. Until a new rule is promulgated, the regulated community must continue to abide by the panoply of existing regulations, case law and agency guidance that attempts to clarify what is meant by "waters of the United States."
If you would like to discuss more particularized implications for your project or company, please contact WilmerHale's Energy, Environment and Natural Resources Group.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions