For more than 45 years, all three branches of government have struggled with how to interpret the meaning of "waters of the United States" (WOTUS) as envisioned in the Clean Water Act (CWA). (1) On February 14,2019, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (corps) (collectively referred to as "the agencies") officially released the Trump Administration's proposed new WOTUS rule (the 2019 proposed rule) defining which wetlands and waters across the U.S. are subject to federal regulation under the CWA. (2) Overall, the 2019 proposed rule definition and approach more narrowly defines the scope of waters subject to regulation under the CWA as compared to the definition in the heavily challenged 2015 rule.
The CWA prohibits the unpermitted discharge of pollutants, including soil or fill material in waterbodies, wetlands, and even some normally dry lands. Accordingly, as the definition of WOTUS expands, so does the federal government's jurisdiction over construction and other activities affecting these areas. The definition of waters of the U.S. under [section]404 of the CWA determines which wetlands and waterbodies are subject to federal regulation by the EPA and the corps. States have their own authorities to regulate water within their borders, regardless of whether the water is WOTUS.
In the early 2000s, U.S. Supreme Court decisions, and subsequent interpretations, created confusion over the definition of waters of the U.S. and the federal government's authority to regulate small waterbodies (e.g., streams, tributaries, and other sources) and wetlands. One of the purported goals of the new WOTUS definition is to clarify prior U.S. Supreme Court cases addressing the scope of federal wetlands jurisdiction. Two Supreme Court rulings, issued in 200 land 2006 respectively, interpreted the scope of the CWA more narrowly than the agencies had done previously in regulations and guidance. (3) However, the rulings also created uncertainty about the intended scope of waters that are protected by the CWA.
Executive Order 13778
In February 2017, President Trump issued Executive Order 13778 entitled, "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the Waters of the United States' Rule." (4) The order directed the agencies to consider revising or rescinding the definition of waters of the US. and consider interpreting navigable waters in a manner that is consistent with the late Justice Scalia's interpretation in Rapanos v. United States,, 547 U.S. 715 (2006), which limited the CWA's jurisdiction to only relatively permanent waters and "wetlands with a continuous surface connection" to a relatively permanent water.
The agencies are implementing the executive order in two steps. Step one repeals the 2015 rule and recodifies the regulatory definition of WOTUS as it existed prior to 2015 (step-one repeal rule). (5) The Step One Repeal Rule became effective on December 23, 2019. (6) Until a new rule is adopted, the pre-2015 rules will remain in place. Step two revises the definition of WOTUS and sets forth rules that are consistent with the executive order (2019 proposed rule). (7) The 2019 proposed rule is explained later in this article following a brief history to put it in context.
History and Caselaw
To understand federal wetlands regulation and its evolution, it is essential to understand the Rapanos case because it sets out several approaches to determining what "waters of the United States" are. Since the opinion was issued in 2006, the agencies and other courts have used the rationales explained in this case in developing their own interpretations of WOTUS. The four-justice plurality opinion, authored by Justice Scalia, held:
In sum, on its...