On December 11, 2018, the United States Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) released a pre-publication of the proposed revision to the “Waters of the United States” (WOTUS) Rule.  The proposed revision is the second step in the review and revision of the 2015 WOTUS rule, pursuant to the February 2017 Executive Order “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”

If a waterway or wetlands are WOTUS, they are subject to Federal regulation and permitting requirements pursuant to the Clean Water Act (CWA).  Following two decisions by the Supreme Court,[1] determinations as to whether water features, such as ephemeral streams and pools or wetlands, could be classified as WOTUS were conducted on a case-by-case basis.

This laborious, time-consuming, and often contentious process was the result of a 4‑1‑4 opinion from the Supreme Court in Rapanos.  Justice Kennedy authored a concurring opinion that defined WOTUS as those waters with a “significant nexus” to navigable waters clearly subject to federal regulation under the CWA.  The 2015 WOTUS rule effectively adopted Justice Kennedy’s “significant nexus” test, thereby requiring that wetlands, ephemeral streams, and other water features that are determined to have a sufficient connection to navigable waters be subject to CWA jurisdiction.[2]

In proposing the revised regulation, officials stated that it would bring clarity to the oft-muddled definition of which waters constitute WOTUS.  The revised WOTUS rule is “inspired by Justice Scalia’s Rapanos opinion,” and adopts the test articulated by the late Justice Scalia.  Under the proposed revision, the only waters under federal CWA jurisdiction are those waterways and wetlands with “relatively permanent” surface water connections to navigable waters.

The pivot from Justice Kennedy’s “significant nexus” test to Justice Scalia’s “relatively permanent” test would diminish federal authority over several types of waterways, including streams that flow only after precipitation events such as rain or snow.  These intermittent streams constitute approximately 18% of waterways in the United States.  Furthermore, wetlands would have to physically abut or border and have a direct hydrological surface connection to navigable waterways to be subject to CWA jurisdiction.

The revised WOTUS rule is also unique in that it relies heavily on legal analysis to explain its deviation from the 2015 WOTUS rule.  Whether this rationale satisfies requirements under the Administrative Procedure Act for changing prior agency determinations remains an open question.

Comments on the proposed WOTUS rule are due within 60 days of the rule’s publication in the Federal Register, which remains forthcoming.  As of January 7, a planned public hearing, originally scheduled for January 23, 2019 in Kansas City, as well as publication in the Federal Register, have been indefinitely postponed pending appropriations to the EPA and Corps.

Comments may be submitted online here; via email to OW-Docket@epa.gov; via mail to:

U.S Environmental Protection Agency
EPA Docket Center
Office of Water Docket
Mail Code 2822IT
1200 Pennsylvania Ave. NW
Washington, D.C. 20460;

or via courier to:

EPA Docket Center
WJC West Building, Room 3334
1301 Constitution Ave. NW
Washington, D.C. 20004
8:30 am – 4:30 pm, Monday-Friday.

Comments must identify the Docket ID:  No. EPA-HQ-OW-2018-0149.

A copy of the proposed rule is available here.

A copy of the joint EPA-Corps press release is available here, and a copy of the press release detailing the postponement of public outreach activities is available here.

For additional information on the proposed WOTUS rule, how to effectively submit public comments, or inquiries regarding other Clean Water Act or other federal environmental rulemaking related issues, please contact Daniel L. Quinley at dquinley@somachlaw.org or 916-469-3845.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.

[1] Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (2001) 531 U.S. 159 (SWANCC); Rapanos v. United States (2006) 547 U.S. 715 (Rapanos).

[2] A sufficient connection requires that a water feature significantly affect the physical, biological, or chemical integrity of a navigable waterway.