Waters of the United States: Current Regulations, Pending Litigation, and the Path Ahead

Description

The Clean Water Act protects "navigable waters," which the Act defines as "waters of the United States" (WOTUS). The Act prohibits discharges of pollutants, including fill material, to WOTUS without first obtaining a permit from either the U.S. Environmental Protection Agency (EPA) or Army Corps of Engineers (Corps).

Over the past half-century, EPA, the Corps, and the courts have offered a wide range of interpretations concerning the types of water bodies that qualify as "WOTUS" and are therefore subject to federal regulation under the Clean Water Act. Most recently, in 2020, EPA and the Corps (under the prior Administration) finalized the Navigable Waters Protection Rule (NWPR), which established a significantly narrower definition of WOTUS than under prior agency rules and guidance. The NWPR maintains federal protections for traditional navigable waters, most perennial and intermittent streams, "adjacent" wetlands, and certain other lakes, ponds, and impoundments. However, the NWPR categorically excludes from the scope of federal jurisdiction certain other water features, including ephemeral streams and other wetlands and water bodies that lack a direct surface hydrological connection to other jurisdictional waters.

In June 2021, EPA and the Corps, now under the purview of the Biden Administration, announced their intention to revise the regulatory definition of WOTUS (again) through a two-step rulemaking process. The first step will reportedly involve the promulgation of a "foundational rule" that restores the regulations that were in place for many years prior to 2015, but with updates to account for relevant Supreme Court decisions. The second step…well, that’s still "TBD."

Adding to the uncertainty, litigation concerning the legality of the Trump-era NWPR continues to swirl through multiple federal courts across the nation. While many in affected industries--including those involved in project development, construction, energy generation/transportation, and agriculture, to name a few--see the NWPR as an overdue removal of federal intrusion into local land-use decisions, many others feel just as strongly that continued implementation of the NWPR will lead to significant degradation of the nation’s invaluable water resources.

Listen as our panel of environmental law leaders examines the current status of the NWPR, the likely outcomes of proposed rulemaking and the decisions of recent cases on how the enforcement of NWPR can impact their clients' business.