Trump Administration  Proposes Changes to Regulations Defining ‘Waters of the United States’

The Environmental Protection Agency and U.S. Army Corps of Engineers last month published a proposed rule defining the scope of waters regulated under the federal Clean Water Act, opening a public comment period through April 15.

The document, published in the Federal Register @ https://www.federalregister.gov/documents/2019/02/14/2019-00791/revised-definition-of-waters-of-the-united-states revises the definition of “waters of the United States” (WOTUS) in line with a February 2017 executive order directing the agencies to review the 2015 WOTUS rule, the agencies said.

The 2015 WOTUS rule, developed by the Obama administration, expanded the definition of the types of waterways that fell under federal jurisdiction. Farmers and livestock groups objected to the regulation as overreach, saying it opened the door to more mandatory permitting, federal enforcement actions and activist lawsuits.

In 2015, a North Dakota-led coalition of 13 states brought suit in the U.S. District Court for the District of North Dakota challenging the contentious Clean Water Rule. The Obama-era rule aimed to clarify which wetlands and streams receive automatic protection under the Clean Water Act.

Challengers in North Dakota won an initial round in the district court when former Judge Ralph Erickson agreed to an injunction on enforcing the rule within the state’s borders. But Erickson, who has since been appointed a circuit court judge, later paused proceedings after the Ohio-based 6th U.S. Circuit Court of Appeals ruled it had jurisdiction to hear WOTUS challenges. The case has been on hold since.

In January of last year, though, the Supreme Court unanimously overturned the 6th Circuit’s jurisdiction decision, finding that litigation challenging WOTUS belongs in federal district courts under the language of the Clean Water Act.  Following the decision, seven of the 13 states that originally filed suit in North Dakota asked the district court to lift the stay.

But the Trump administration had urged the court to keep the suit on pause to give U.S. EPA and the Army Corps of Engineers time to repeal and replace the rule expecting the Trump administration would be working on a version that was expected to cover fewer bodies of water.

The heart of the action has been in U.S. District Court for the Southern District of Texas, which is considering requests by states and industry groups for an injunction barring enforcement of WOTUS nationwide.

Although the Trump administration stayed implementation of the rule by two years after the Supreme Court decision, states and industry groups argue that a court injunction is needed because of the delay rule’s uncertain future. Environmentalists and states that supported WOTUS have filed litigation challenging that delay in district courts in New York and South Carolina.

Under the new rule, traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federally regulated.

The rule also spells out what are not “waters of the United States,” including features that only contain water during or in response to rainfall (ephemeral features); groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; storm water control features; and waste treatment systems.