Laura Gatz and Kate R. Bowers are the authors of this recent CRS report (30 September 2021): Redefining Waters of the United States (WOTUS): Recent Developments.
Boy, would I like to see some recent developments! Click on the graphic to enlarge it.
Download CRS_Report_ Redefinig_WOTUS_Recent_Developments_30Sept2021
Summary
Congress established the Federal Water Pollution Control Act, also known as the Clean Water Act (CWA), to restore and protect the quality of the nation’s surface waters. The CWA protects “navigable waters,” defined in the statute as “waters of the United States, including the territorial seas.” The CWA does not further define the term waters of the United States (WOTUS), which determines which waters are federally regulated. Thus, in implementing the CWA, the Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA)—the two agencies that administer the statute—have defined the term in regulations. However, Congress’s intent as to the meaning of WOTUS has been debated and litigated for more than four decades.For much of the past several decades, regulations promulgated by the Corps and EPA in the 1980s have been in effect. The agencies supplemented these regulations with guidance developed in 2003 and 2008 in response to two Supreme Court rulings—Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, in 2001, and Rapanos v. United States, in 2006—which interpreted the CWA’s scope more narrowly than the Corps and EPA had done previously in regulations and guidance, but also created uncertainty about the intended scope of waters protected by the CWA. The Corps and EPA acknowledged that their guidance did not provide the public or agency staff with the information needed to ensure timely, predictable, and consistent jurisdictional determinations. Diverse stakeholders requested a formal rulemaking to
revise existing regulations.In 2015, the Corps and EPA issued the Clean Water Rule, which redefined WOTUS in the agencies’ regulations for the first time since the 1980s. While the Corps and EPA contended that the primary intent of the 2015 Clean Water Rule was to clarify its regulatory jurisdiction, some stakeholders and observers viewed it as an expansion instead. Other stakeholders argued that it excluded too many waters from federal jurisdiction. Industry groups, more than half the states, and several environmental groups filed lawsuits challenging the Clean Water Rule in federal courts across the country.
The Trump Administration described the 2015 Clean Water Rule as an example of federal “overreach” and took steps to rescind and revise it. On October 22, 2019, the Corps and EPA published a final rule to rescind the 2015 Clean Water Rule and recodify the pre-2015 regulations (i.e., the 1980s regulations). On April 21, 2020, the agencies published a second final rule to redefine WOTUS, the Navigable Waters Protection Rule, which went into effect on June 22, 2020. Overall, the Navigable Waters Protection Rule narrowed the scope of waters that fell under federal jurisdiction. The Navigable Waters Protection Rule prompted strong reactions from a variety of stakeholders, and numerous groups filed lawsuits challenging it.
The Biden Administration has taken steps to reconsider the Navigable Waters Protection Rule. President Biden issued an executive order which revoked a Trump Administration executive order related to WOTUS and directed agencies to review certain Trump Administration agency actions, including the Navigable Waters Protection Rule. On June 9, 2021, the Corps and EPA announced their intent to initiate a new rulemaking process that would both restore the protections in place prior to the 2015 Clean Water Rule and develop a new rule to establish a “durable” WOTUS definition. On July 30, 2021, the agencies signed a notice of public meeting dates and solicitation of pre-proposal feedback from stakeholders regarding their perspectives on defining WOTUS. On September 3, 2021, following a court order vacating the Navigable Waters Protection Rule, the agencies announced that they had halted implementation of the rule and would interpret WOTUS consistent with the pre-2015 regulatory regime.
Congress has shown continued interest in the scope of WOTUS. In the 116th and 117th Congresses, committees have held hearings that discussed WOTUS, and some Members have introduced legislation regarding the definition of WOTUS.
Introduction
Congress established the Federal Water Pollution Control Act, also known as the Clean Water Act (CWA), to restore and protect the quality of the nation’s surface waters.1 The CWA protects “navigable waters,” defined in the statute as “waters of the United States, including the territorial seas.”2 The scope of this term—waters of the United States, or WOTUS—determines which waters are federally regulated and has been the subject of debate for decades.3 The CWA does not define the term. Thus, in implementing the CWA, the Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA)—the two agencies that administer the statute—have defined the term in regulations.For several decades, successive presidential administrations have struggled to interpret the term waters of the United States for the purpose of implementing various requirements of the CWA, and courts have been asked repeatedly to review the regulations and policy expressing those interpretations. Stakeholders have asked the various administrations and the courts to resolve issues involving scope, clarity, consistency, and predictability. Some stakeholders argue against any definition that would result in a broad scope of waters under federal jurisdiction and affect the interests of property owners, farmers, and others.4 Other stakeholders argue that a definition that results in too narrow of a scope of waters under federal jurisdiction would leave some hydrologically connected waters and aquatic habitats unprotected.5
The agencies’ efforts to define WOTUS in regulation during both the Obama and Trump Administrations have been mired in controversy and litigation. Many observers viewed the Obama Administration’s 2015 Clean Water Rule as defining WOTUS too broadly, while many viewed the Trump Administration’s 2020 Navigable Waters Protection Rule as defining WOTUS too narrowly. A federal district court vacated the Navigable Waters Protection Rule in September 2021, after which the Corps and EPA announced that they had halted implementation of the rule.6 The Biden Administration has signaled its intent to pursue an “enduring definition” that considers the implementation challenges presented by both of those rules. In light of these challenges, some observers argue that the statutory terms navigable waters and waters of the United States are too vague and should be more specifically defined by Congress or the courts. Others argue that the Corps and EPA, with their specific knowledge and expertise, are in the best position to determine the scope of the term.
Actions by the courts, the Biden Administration, and Congress all have the potential to continue to alter the scope of federal jurisdiction under the CWA. This report examines the actions takenby the Obama, Trump, and Biden Administrations to define waters of the United States, along with related legislation and case law.
Enjoy!
"If at first you don't succeed, hide all evidence that you ever tried." - Billy Collins
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