Category: WOTUS

Breazeale Sachse & Wilson LLP
John B. King

September 13, 2019

The EPA and the Corps of Engineers have taken the first of two steps to repeal and replace the definition of ‘waters of the United States’ promulgated by the Obama Administration in 2015 (the 2015 Rule). The definition establishes the jurisdictional reach of the EPA and Corps under the Clean Water Act to regulate navigable waterways, tributaries, and their adjacent wetlands. The 2015 Rule had been widely criticized as being overly expansive because more waterways, tributaries, and wetlands were considered to be subject to jurisdiction.

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Goldberg Segalla LLP
Brandon D. Zeller

June 6, 2019

Last week, a federal district judge in Texas remanded the Obama-era Waters of the United States rule to the EPA and U.S. Army Corps of Engineers (US ACE), citing the agencies’ failure to use proper procedure when publishing the rule.

​The 2015 rule, generally referred to as WOTUS, allowed for a drastic increase to the reach of the Clean Water Act (CWA), in part, by defining “waters of the United States” to include waters adjacent to waters that had traditionally been considered covered by the CWA. Under the WOTUS definition, the CWA’s jurisdiction extended to any area where water is found at any time so long as that water flows on the surface or below the surface to an otherwise recognized WOTUS. Application of WOTUS has been delayed by litigation in courts around the country, and the EPA under the current administration has worked to defang or dismantle the rule.

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Vinson & Elkins LLP
Andrew R. Stewart and Taylor Holcomb

July 31, 2017

On July 27, the Environmental Protection Agency and the Corps of Engineers jointly proposed to rescind the “waters of the United States” definition in the Code of Federal Regulations and to apply the definition in place both before to the 2015 rulemaking adding the definition and after the Sixth Circuit’s late 2015 stay of the rule. This rulemaking is drawing substantial interest because the definition outlines much of these agencies’ jurisdiction. Public comments are due on August 28, 2017.

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Dinsmore & Shohl LLP
Anna Skinner

May 30, 2017

One of the first environmental measures the Trump administration took was issuing Executive Order 13778 directing the Environmental Protection Agency (EPA) to review and either rescind or revise the 2015 Clean Water Rule: Definition of “Waters of the United States” (WOTUS Rule). The WOTUS Rule was promulgated under the Clean Water Act (CWA), which defines the scope of CWA jurisdiction as “navigable waters of the United States.” The scope of “navigable waters of the United States” has been hotly debated in several court cases since the CWA was enacted. The WOTUS Rule sought to define which rivers, streams, lakes and marshes fell under the definition of “navigable waters of the United States.” See 80 Fed. Reg. 37054 (June 19, 2015). The WOTUS Rule took the approach of Justice Anthony Kennedy’s concurring opinion in Rapanos v. United States that navigable waters include any water body that has a “significant nexus” to navigable rivers and seas, including through biological or chemical connections. See 547 U.S. 715, 759 (2006).

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Beveridge & Diamond PC
W. Parker Moore

November 21, 2014

It was inevitable I suppose.  In a town where every policy discussion reaffirms the lampooning it receives in HBO’s “Veep,” it was only a matter of time until the EPA/Army Corps’ proposed rule on the scope of jurisdiction under the Clean Water Act earned an insider Washington acronym.  After all, “WOTUS” is much cooler than saying “waters of the United States.”  Plus it’s a real time-saver – imperative when referring to a rule eight years in the making.

As everyone knows by now, the massive WOTUS proposal grew out of the remarkably timid and confusing Rapanos ruling by the Supreme Court of the United States, “SCOTUS.”  There, the Justices split 4-1-4 when presented with a straightforward question:  “Are remote, non-navigable waters and wetlands subject to federal jurisdiction under the Clean Water Act?”

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