EPA Announces Latest WOTUS Definition
The “WOTUS wars” have been pushed out of the headlines in recent months, but on November 17, President Donald Trump’s Environmental Protection Agency announced yet another redefinition of “waters of the U.S.”
Back and forth court battles over the proper definition of the phrase “waters of the United States,” found in the 1973 Clean Water Act, have been going on ever since 2015, when the Obama administration issued its Clean Water Rule, sparking tit-for-tat lawsuits and redefinitions in each successive administration.
The Obama administration move was a response to the fractured 2006 Supreme Court ruling in Rapanos v. United States, a 4-4-1 decision that Chief Justice John Roberts himself called “unfortunate.” Rapanos left in place many ambiguities over the scope of the authority of the Environmental Protection Agency and Corps of Engineers in regulating waters. Among the terms that Rapanos left undefined was “wetland” and “relatively permanent bodies of water.” The phrase “significant nexus,” coined by Justice Anthony Kennedy, and designating the connection between regulated navigable waters and non-navigable ones, became notorious for its vagueness.
Taking full advantage of every ambiguity in Rapanos, the 2015 70-page Obama administration redefinition expanded the regulatory powers of the EPA. Critics—including landowners, farmers and business interests—called the Obama administration’s redefinition an illegal encroachment on Congress’ legislative powers disguised as an administrative adjustment, as well as a federal power grab over virtually any use of land that involved water. Environmentalists generally supported the EPA’s expanded powers. The next several administrations saw repeated redefinitions, with new comment periods for each one. Each sparked new lawsuits and suspensions of the rule’s enforcement while the cases were debated in court.
In the 2023 Sackett v. EPA decision, the Supreme Court attempted to undo some of the confusion resulting from the tangled Rapanos decision. The Sackett court replaced the widely derided “significant nexus” with a ruling that held federally protected wetlands must have a “continuous surface connection” to a traditional navigable water or tributary. This decision eliminated federal protection for wetlands that are separated from waterways by a man-made barrier, natural berm or other obstruction, a change that restricts the EPA’s regulatory authority.
A year later, in June 2024, in Loper Bright Enterprises v. Raimundo, the Supreme Court revoked a 40-year-old doctrine known as Chevron deference—created by an earlier Supreme Court ruling—that in cases of ambiguous language in a law, federal agencies enjoy a presumptive advantage in defining how they are to be interpreted.
On its website, the EPA wrote, “This proposal implements the Supreme Court’s decision in Sackett v. EPA. The proposed rule will play a key role in EPA’s Powering the Great American Comeback initiative by protecting water resources, strengthening cooperative federalism and supporting American industry, energy producers, the technology sector, farmers, ranchers, developers, businesses and landowners.”
“In developing the proposed rule, EPA and the Army reviewed and considered the extensive feedback and recommendations the agencies received from states, tribes, local governments and stakeholders throughout consultations and the pre-proposal recommendations docket and listening sessions,” the EPA continued.
On November 20, the proposed rule “Updated Definition of ‘Waters of the United States'” was published in the Federal Register. The 45-day comment period will close on January 5. Comments can be submitted on www.regulations.org.
