WOTUS Rule Rescinded

On March 6, 2017, the U.S. Army Corps of Engineers ("Army Corps") and the U.S. Environmental Protection Agency ("USEPA") officially announced their intention to rescind or revise a final rule defining "waters of the United States" under the Clean Water Act. The 2015 Clean Water Rule defined "waters of the United States" as those having a "significant nexus" with "navigable waters," thereby including upstream and adjacent waters not navigable-in-fact under the jurisdiction of the Army Corps and USEPA. The highly controversial rule was challenged by 31 states, and on February 28, 2017, President Trump issued an Executive Order directing the agencies to rescind or revise the rule. The agencies Notice of Intent implementing the Order was published in the Federal Register on March 6th.

The 2015 Rule was based largely on the opinion of Justice Kennedy in Rapanos v. U.S., 547 U.S. 715 (2006), which adopted a jurisdictional definition for "waters of the United States" that included waters with a "significant nexus" to traditional navigable waters. According to the 2015 Rule, a "significant nexus" is based on an evaluation of waters that have a physical, hydrological, chemical, biological, or ecological connection, as well as legal and technical considerations within the agencies' expertise in implementing the Clean Water Act. Consequently, in addition to jurisdictional waters (traditional navigable waters, interstate waters, territorial seas), the 2015 Rule designated tributaries and adjacent waters, such as waters located within a 100-year floodplain, as jurisdictional by rule based on scientific information supporting a significant nexus to jurisdictional waters. The 2015 Rule also established categories of waters requiring a case-specific analysis to determine if a "significant nexus" exists, namely Prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, Texas coastal prairie wetlands, and waters within certain distances of floodplains, the high-tide line, or the high water mark.

In contrast, the Notice of Intent states that the agencies will consider a jurisdictional definition of "waters of the United States" that is consistent with the plurality opinion in Rapanos written by former Justice Scalia, which rejected the "significant nexus" standard. Rather, the definition articulated in the plurality opinion narrows the definition of "waters of the United States" to those waters that are relatively permanent, or in the case of wetlands, have a continuous surface connection to water bodies that are traditional "waters of the United States" so that there is no clear demarcation between the two. The definition in the opinion thereby excludes channels that have only intermittent or ephemeral water flows, as well as adjacent water bodies. Accordingly, if the plurality opinion is to be the guide for a new Clean Water Rule, the new rule will likely exclude waters that lack a permanent physical connection with traditional navigable waters, such as adjacent or isolated wetlands and water bodies, as well as drainage channels that have only intermittent or ephemeral water flows.