United States: The Longest Dance – The WOTUS Two-Step

Last Updated: November 5 2019
Article by Amy P. Wang

We are on the eve of a new regulatory definition of "waters of the United States" for the Clean Water Act. 

The United States Environmental Protection Agency ("EPA") and Army Corps of Engineers ("Corps") completed step one of the two-step "repeal and replace" process ordered by President Trump in 2017 by finalizing a new rule on September 12, 2019, to repeal the 2015 Clean Water Rule (the "Clean Water Rule").

How Did We Get Here?

Since 1972 the Clean Water Act ("Act") has prohibited the unpermitted discharge of pollutants and dredged and fill materials into navigable waters. "Navigable waters" is defined in the Act as "waters of the United States, including the territorial seas," but Congress has never defined "waters of the United States" ("WOTUS").  For the last 40 years, the EPA, the Corps, the courts, and the regulated public have grappled with exactly what waters are subject to federal jurisdiction.

In the early 2000s, two Supreme Court decisions expanded the interpretation of WOTUS from its then-accepted definition—rivers, lakes, coastal waters, tributaries, and wetlands that affect interstate commerce—to include those waters with considerably less direct subsurface connection to traditional navigable waters.  One of these decisions, Rapanos v. United States (2006), was decided by a split court with no controlling opinion.  The lower courts, the EPA, and the Corps routinely began following now-retired Justice Anthony Kennedy's concurring opinion rather than the plurality opinion by the late Justice Antonin Scalia.  Justice Kennedy's lone opinion advocated use of a "significant nexus" test—that jurisdiction under the Act extends to bodies of water and wetlands, alone or combined with other similarly situated lands that significantly contribute to the chemical, physical, and biological integrity of traditional navigable waters.  But the application of this significant nexus test on a case-by-case basis to waters in different states across the country led to inconsistent and unpredictable results for the regulated community.

To minimize these case-by-case evaluations and provide predictability for the frustrated, and often outraged, regulated community, the EPA and the Corps under the Obama Administration published the Clean Water Rule in August 2015, which provided a WOTUS definition, which we covered in an earlier article.  But the Clean Water Rule barely made it out of publication before challenges were filed across the country--by states and industry groups that saw the Clean Water Rule as government overreach and by environmental interest groups that saw it as failing the Act's protective goals.  By October 2015, there was a nationwide stay halting the application of the Clean Water Rule.  The stay was vacated in early 2018, but the confusion remained: twenty-two states now follow the Clean Water Rule while the remaining 28 follow the pre-2015 regulations and guidance that came out of Rapanos.

Two Steps Forward, One Step Back

On February 28, 2017, President Trump issued an Executive Order directing the EPA and the Corps to review and then either rescind or revise the Clean Water Rule.  Out of that Order, the EPA and the Corps developed a two-step process: Step One – Repeal, and Step Two – Replace.

For Step One, the EPA and the Corps, in February 2018, suspended implementation of the Clean Water Rule until 2020.  But this effort, often called the Applicability Rule or the Suspension Rule, was immediately challenged and struck down in two federal courts.  The agencies appealed.

Meanwhile, for Step Two, the agencies crafted a new definition of WOTUS, interpreting the term as expressed by Justice Scalia in the Rapanos plurality opinion.  Under this opinion, jurisdiction of the Act extends only to those waters which are: traditionally used in commerce; interstate; relatively permanent and connected to traditional navigable waters; and wetlands with a continuous surface connection.  Such a definition narrows the scope of waters subject to jurisdiction under the Act and also retracts some of the coverage broadened under the significant nexus test.

In February 2019, the EPA and Corps published in the Federal Register for public comment a revised definition of WOTUS to clarify the uncertainty still surrounding the Clean Water Rule.  According to the agencies, the proposed WOTUS definition generally includes:

  • Traditional navigable waters, such as rivers, lakes, tidal waters, and territorial seas, including wetlands along coastlines, used in interstate commerce;
  • Tributaries, so long as they are perennial or intermittent and not ephemeral;
  • Certain ditches;
  • Certain lakes and ponds;
  • Impoundments; and
  • Adjacent wetlands, those that touch or have a surface water connection to other jurisdictional waters.
  • Eleven exclusions from the WOTUS definition include groundwater, prior converted cropland, and stormwater control features.

The EPA and Corps then took stock of the challenges to the Applicability Rule across the country.  On March 8, 2019, the agencies voluntarily dismissed the appeals to focus collective efforts on finalizing the revised definition of WOTUS based on public comment received during the notice period.

One Step Forward Again

Finally, on September 12, 2019, EPA and the Corps announced the formal repeal of the Clean Water Rule to return to national uniformity under the pre-2015 regulations.  The final rule repeal was published in the Federal Register on October 22, 2019, and will take effect 60 days thereafter, on December 23, 2019.  At that time, Step One will be complete.  The agencies then will implement the pre-2015 regulations until a replacement rule is effective.

Unfortunately, companies now have the same regulatory uncertainty that prompted nationwide efforts to define WOTUS over the last 12 years.  Those with interests in real estate development, agriculture, and manufacturing should make sure advisory teams carefully review current regulations, agency guidance documents, and longstanding agency practice before engaging in land-disturbing activities.

Be on the lookout for the Finale in early 2020 – publication of the Replacement Rule.

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.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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.

Disclaimer

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.

General

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