Proposed Replacement for the Clean Water Rule

The Environmental Protection Agency (EPA) and the Corps of Army Engineers have proposed new regulations defining the “waters of the United States” (“WOTUS”) subject to federal protection from pollution under the Clean Water Act, through the National Pollutant Discharge Elimination System (NPDES) permit program. The new rules would replace, and substantially narrow the range of waters covered by, the WOTUS definition set out in regulations previously issued by the Obama Administration in 2015 and known as the “Clean Water Rule.” 

Basics and Bullets:
  • Under the Clean Water Act (the “CWA”),  the Federal Government requires permits to be obtained for any activity that  involves discharging pollutants into “waters of the United States.”
  • These permits may establish limits or conditions on the covered activity; and failure to obtain or comply with permits can subject the polluter to fines and penalties.
  •  The Environmental Protection Agency (EPA) and the Army Corps of Engineers (COE) issued  regulations in 2015 to clarify what falls within the definition of “waters of the United States” (“WOTUS”).
  • The definition of WOTUS in those regulations — also known as the “Clean Water Rule” — formally extended federal protections to streams, wetlands, and other smaller bodies of water considered by scientists and environmentalists to be essential to the health of larger bodies they flow or drain into.
  • The Clean Water Rule made protection of certain types of waters contingent on whether their pollution status has a “significant nexus” to the quality of water in traditional navigable waters (“primary” waters that are clearly within the jurisdiction of the federal permitting program).   “Significant nexus” was defined to mean a water, including wetlands, that (either alone or in combination with other similarly situated waters in the region) significantly affects the chemical, physical, or biological integrity of a primary water.  
  • The Clean Water Rule established distance standards between “primary” waters and less clearly “jurisdictional” waters, within which the waters were regarded to share a “significant nexus” with respect to water quality and pollution status.  For other waters, application of the “significant nexus” standard required a case-by-case analysis to determine whether they fell within federal permitting jurisdiction.  
  • After inauguration of President Trump (and in direct compliance with one of his Executive Orders) EPA and COE announced their intention to proceed with a two-step deregulatory process of first repealing and then replacing the Clean Water Rule. The current proposal follows several related proposals, actions, and public comment periods, implementing the plan to rescind the Clean Water Rule, temporarily reinstate the rules and federal guidance that preceded issuance of that Rule, and set the stage for establishing a replacement WOTUS definition.
  • Presently, due to various lawsuits as well as regulatory notices and issuances, the Clean Water Rule is in effect in 22 States, and the pre-2015 federal rules and guidance are in effect in 28 States.
  • The proposed replacement regulations would significantly diminish the waters subject to protection under the federal permitting program. They would eliminate federal pollution protection for streams and tributaries that flow only after rainfall or melting of snow, as well as for millions of acres of wetlands that had fallen within the WOTUS definition in the Clean Water Rule.
  • Many farmers, ranchers, manufacturers, and other landowners and business interests applaud the new rules as rolling back Obama-era policy they considered to be a vast over-reach of authority by the federal Government.
  •  Environmental groups and environmental scientists regard the new regulations as an invitation to oil drillers, industrial sites, developers, and other polluters to contaminate waters that potentially affect the safety of the water supply for millions of Americans.
Summary of the Proposed Regulations:

The proposed regulations would define the “waters of the United States”  (“WOTUS”) to which the CWA affords federal protection under the NPDS  permitting program to be limited to “relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or that have a specific connection to traditional navigable waters, as well as wetlands abutting or having a direct hydrologic surface connection to those waters.”  (Waterbodies would have to be touching in order to be regarded to “abut” each other.)  WOTUS would be considered to include “traditional navigable waters, including the territorial seas; tributaries of such waters; certain ditches; certain lakes and ponds; impoundments of otherwise jurisdictional waters; and wetlands adjacent to other jurisdictional waters.” (The term “jurisdictional” is used to refer to waters within federal permitting jurisdiction under the CWA.”)

More specifically, protected waters would consist of “[w]aters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including the territorial seas and waters which are subject to the ebb and flow of the tide,” as well as the tributaries of those waters.  Lakes, ponds, and even man-made channels used to convey water (defined as “ditches” for purposes of the regulations) would qualify as WOTUS if they met this base definition, as would ditches constructed in a tributary, or that relocate or alter a tributary, as long as those ditches also meet the rules’ definition of a tributary (that is, “a river, stream, or similar naturally occurring surface water channel that contributes perennial or intermittent flow to a traditional navigable water or territorial sea in a typical year either directly or indirectly” through another body of water characterized as a WOTUS under the proposed regulations). Also included would be lakes and ponds that (1) contribute perennial or intermittent flow to a water meeting the base definition in a typical year either directly or indirectly through another water qualifying as a WOTUS (as long as the water features bringing that other water within the WOTUS definition convey perennial or intermittent flow downstream), or (2) are flooded by a water qualifying as a WOTUS in a typical year. Wetlands adjacent to ( i.e., that abut or have a direct hydrological surface connection to) a WOTUS would be included, along with impoundments of other waters meeting the definition of a WOTUS. (A wetland would be regarded to “abut” another water only if the two waters were touching.  A direct hydrological surface connection means that that there is “inundation from a jurisdictional water to a wetland or via perennial or intermittent flow between a wetland and the jurisdictional water.”  Wetlands physically separated from other waters of the United States by upland or by dikes, barriers, or similar structures and also lacking a direct hydrologic surface connection to such waters are not adjacent under under the proposed regulations.)

All waters or “water features” not meeting the new WOTUS definition would be ineligible for federal CWA protection under the permitting program.  For clarity. the rules expressly exclude the following from the WOTUS definition:  (1) Groundwater, including groundwater drained through subsurface drainage systems; (2) Ephemeral features and diffuse stormwater run-off, including directional sheet flow over upland; (3) ditches other than those expressly described as meeting the rules’ WOTUS definition; (4) Prior converted cropland; (5) Artificially irrigated areas, including fields flooded for rice or cranberry growing, that would revert to upland should application of irrigation water to that area cease; (6) Artificial lakes and ponds constructed in upland (including water storage reservoirs, farm and stock watering ponds, and log cleaning ponds) which are not expressly described as WOTUS; (7) Water-filled depressions created in upland incidental to mining or construction activity, and pits excavated in upland for the purpose of obtaining fill, sand, or gravel; (8) Stormwater control features excavated or constructed in upland to convey, treat, infiltrate or store stormwater run-off; (9) Wastewater recycling structures constructed in upland, such as detention, retention and infiltration basins and ponds, and groundwater recharge basins; and (10) Waste treatment systems.

This proposed definition narrows the scope of WOTUS as previously defined by the Clean Water Rule in many respects — notably in regard to the exclusion of waters that exist or flow only as a result of precipitation (but may nevertheless, if polluted, spread pollutants to other, more permanent bodies of water), as well as waters that are physically separated from traditional navigable waters but may nevertheless impact the pollution level of such waters, for example  because of the capacity of groundwater to transmit pollutants from one water source to another body of water that is nearby, despite the absence of any surface connection or other direct flow between the two waters.

The Agencies’ Justification for the Proposed New Rules:

The current EPA and COE take the position that their revised WOTUS definition is more consistent than the previous Clean Water Rule with the text, structure, and intent of the CWA, as well as with Supreme Court precedent interpreting that statute.  They justify the new rules as properly limiting the scope of federal authority over waterways, so as to more effectively preserve the traditional sovereignty of States over their own land and water resources. In addition, the Agencies believe the proposed definition would improve clarity and predictability for Federal agencies, States, Tribes, the regulated community, and the public with respect to what activities are prohibited or require a federal permit.  A foundational part of the rationale for more narrowly limiting the waters defined as WOTUS is the point that federal permitting authority in the CWA was predicated on federal authority to regulate foreign and interstate commerce under the Commerce Clause of the U.S. Constitution.  Accordingly, the Agencies regard federal authority to protect waters from pollution through the permitting program to extend only to waters that play, or might potentially play, a role in facilitating the movement of goods in commerce.  In addition, the Agencies estimate that many millions of dollars will be saved by implementing the new rules.  The Agencies have performed Economic Analyses that indicate reverting to previous regulations (those in effect before issuance of the Clean Water Rule), as opposed to continuing under the Clean Water Rule, would produce annual avoided costs ranging (depending upon the extent of State regulation of water pollution) either between $98 and $164 million with annual forgone benefits ranging between $33 to $38 million, or avoided annual costs ranging from $9 to $15 million with annual forgone benefits of approximately $3 million. These analyses also indicate that implementing the proposed new rules, in comparison with reverting to the pre-2015 rules that preceded the Clean Water Rule, would yield national annual avoided costs estimated either to range from $28 million to $266 million with national annual forgone benefits ranging from $7 million to $47 million, or to range from $28 million to $497 million with national annual forgone benefits ranging from $7 million to $136 million.

Additional Information and Resources for a Deeper Dive: 

Further Background: The Clean Water Rule, as issued in 2015, did not impose particular regulatory requirements per se. Rather, it defined the waters to which certain federal anti-pollution laws and authorities apply.  The Clean Water Act (CWA) requires permits to be obtained for activities that involve the discharge of pollutants into “navigable waters,” and defines such waters as “waters of the United States including the territorial seas.”   Precise interpretation of what “waters of the United States” (commonly referred to as “WOTUS”) are has been a controversial issue for many years, giving rise to extensive litigation and a number of Supreme Court cases.  The most recent of those cases, Rapanos v. United States, left considerable uncertainty as to the controlling judicial standard.

In Rapanos, a majority of the Court found that the Army Corps of Engineers had interpreted WOTUS too expansively in imposing permit requirements with respect to certain wetlands, but did not entirely agree on the legal basis for the Court’s ruling.  Justice Scalia wrote a plurality Opinion (an Opinion representing the views of more Justices than had agreed upon any other Opinion) in which he was joined by three other Justices; Justice Kennedy concurred in the judgment, but wrote a separate concurring Opinion articulating a somewhat different interpretation of the WOTUS concept than Scalia’s Opinion.

Under Justice Scalia’s formulation of the statutory standard, waters of the United States are limited to “relatively permanent, standing or continuously flowing bodies of water” that are connected to traditional navigable waters and wetlands with a “continuous surface connection” to such plainly protected bodies of water.  This interpretation did not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as in a drought, or “seasonal” rivers or streams that have continuous flow during only some months of the year; but it did exclude wetlands that the Corps of Engineers had deemed to be protected by virtue of being relatively close to traditional navigable waters.  By contrast, Justice Kennedy’s concurring Opinion relied on application of a seemingly more expansive “nexus” standard.  Under Kennedy’s analysis (which tipped the balance of the Court in favor of the Scalia plurality as opposed to the other four dissenting Justices), a water or wetland falls within the scope of WOTUS if it possesses a “significant nexus” to waters that are navigable in fact or could reasonably be made so.  Wetlands have such a nexus if they significantly affect the chemical, physical, and biological integrity of other covered waters understood as navigable in the traditional sense (either alone or in combination with similarly situated lands in the region).

In the 2015 Clean Water Rule, the EPA had sought to establish much needed clarity in what would and would not be regarded as a WOTUS subject to permitting requirements, taking into consideration the differing Supreme Court formulations, the governing statute’s underlying purpose (to restore and maintain the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, and the territorial seas), and extensive scientific data compiled in an EPA Report.  The Rule defined “waters of the United States” in a manner extending CWA coverage (and thus federal statutory authority to regulate polluting activity) to streams and wetlands that did not clearly fall within the scope of previous regulations and EPA guidance (for example, certain tributaries, isolated waters such as prairie potholes and vernal pools, and waters deemed “adjacent” because located within a specified distance of, although not physically connected to, bodies of water clearly subject to CWA protection).

In justifying the new Rule, the Obama Administration EPA placed heavy reliance on scientific evidence that an expansive definition of “waters of the United States” is necessary to afford the nation’s traditional “navigable waters” the pollution protection clearly intended by the Clean Water Act.    Opponents of the Rule saw it as an unwarranted stretch of federal authority into land use matters more appropriately left to the individual States, and an imposition of unjustified burdens on industry and farming.

When the Trump Administration EPA first issued Notice of its proposal to rescind the Clean Water Rule, the Agency explained that it envisioned a two-step process, in which the Government would first rescind the existing regulations, and then replace them with new regulations likely to more narrowly restrict federal oversight of activities involving the discharge of pollutants into water sources.  Through a series of proposed rulemaking notices, associated public comment periods, and final actions, the EPA rescinded the Clean Water Rule, reinstituted the regulatory regime (including federal guidance issued in 2008) that existed prior to June, 2015, and that in reality had continued as the status quo due to unresolved court challenges to the 2015 Clean Water Rule’s validity, and invited public comment on what should be included in a new WOTUS definition. The current proposal to establish a new regulatory standard that more restrictively defines “waters of the United States,” and thus more narrowly limits federal authority to prevent water pollution, is consistent with the views EPA and COE have been expressing throughout the course of this extended regulatory process.

Other Resources for a Deeper Dive:  The full Notice of Proposed Rulemaking is lengthy (more than 250 pages long), but does set out a fairly comprehensive explanation of the current Administration’s views and arguments relating to the prior Clean Water Rule and the proper scope of federal authority under the Clean Water Act, along with an exhaustive legislative, administrative and  litigation history of the regulatory issue.  If you wish to gain a complete understanding of the competing arguments both in favor of and against the proposed Clean Water Rule replacement, you may want to compare the EPA’s explanations in its current Notice and its previous Notice of proposed repeal of the Clean Water Rule  with the very different rationale articulated by the Obama-era EPA to accompany publication of the final Clean Water Rule in 2015..  An important underpinning of that previous rationale was the EPA’s Final Report on scientific evidence pertaining to the effects of wetlands and other smaller, isolated, or non-flowing water bodies on more well-recognized “navigable waters.”

Among the many other additional resources that can be accessed online to better understand the issue is the National Resource Defense Council’s explanation of its support for the 2015 Rule and a Science article articulating the view that and the Trump Administration policy side-steps important scientific evidence and considerations.  On the other side of the debate, you may wish to read the Competitive Enterprise Institute’s explanation of its opposition to the Clean Water Rule, a Think Progress article seeking to explain why the validity and advisability of the Rule has been controversial, and a PBS News Hour discussion of why small farmers and ranchers as well as larger industrial entities have generally opposed it.

A Congressional Research Service document, updated last December, sets out a good summary of the history and current status of the 2015 Clean Water Rule. Articles summarizing the Trump Administration’s recently proposed replacement for the Rule and explaining the surrounding controversy appear on the websites of Vox, the law firm of Van Ness Feldman, LLP, as well as the  National Association of Counties. and the New York Times. A very informative article explaining the proposed rules along with grounds for opposing them appears on the website of Save EPA (an organization of former EPA employees).  Other organizations whose websites explain their opposition to the proposed new regulations include the Center for Biological Diversity, as well as the Natural Resources Defense Council ( also follow this link to an NRDC Blog post).  By contrast, articles reporting and explaining support for the proposed regulations by the agricultural industry can be found on the Farm Bureau website and in the agricultural industry publication Feedstuffs; while an article in EHS Today reports on similar support from the National Association of Manufacturers (NAM).