About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

1 1 (October 23, 2019)

handle is hein.crs/govbbms0001 and id is 1 raw text is: I Congressional Research Service ~~Info rmng the egislative debate since 1914 0 October 23, 2019 Waters of the United States (WOTUS): Repealing and Revising the 2015 Clean Water Rule Background. What Is WOTUS? Congress passed the Clean Water Act (CWA) to restore and protect the quality of the nation's surface waters (33 U.S.C. § 1251 et seq.). The statute protects navigable waters, which it defines as the waters of the United States, including the territorial seas. The CWA does not further define the term waters of the United States (WOTUS). Thus, the Army Corps of Engineers and U.S. Environmental Protection Agency (EPA) have defined WOTUS in their regulations. However, Congress's intent as to the meaning of WOTUS has been debated and litigated for more than four decades. WOTUS Regulations and Rapanos In the 1980s, EPA and the Corps defined WOTUS to include, among other things, all waters and wetlands the use, degradation, or destruction of which could affect interstate or foreign commerce. While the Supreme Court never struck down this regulation, it held twice that the agencies exceeded their CWA authority in interpreting and applying the regulation. The Supreme Court has disagreed on WOTUS's scope. In a 2006 decision, Rapanos v. United States, a four-Justice plurality (written by Justice Scalia) argued that WOTUS encompasses relatively permanent, standing or continuously flowing bodies of water, such as streams, rivers, or lakes and wetlands that have a continuous surface connection' to waters subject to the CWA. Justice Kennedy, by contrast, wrote a concurring opinion arguing that WOTUS includes wetlands that have a significant nexus to traditionally navigable waters. Justice Kennedy elaborated that a significant nexus exists when the wetland, either alone or in connection with similarly situated properties, significantly impacts the chemical, physical, and biological integrity of a traditionally navigable water. After Rapanos, EPA and the Corps issued interpretive guidance in 2008 in which they organized the CWA jurisdictional analysis into three categories: 1. Waters and wetlands that are categorically WOTUS, including traditionally navigable waters, relatively permanent tributaries, wetlands adjacent to traditionally navigable waters, and wetlands that abut tributaries to such waters. 2. Waters and wetlands that may be deemed WOTUS on a case-by-case basis upon a finding of a significant nexus with traditionally navigable waters. This category includes wetlands adjacent to certain tributaries as well as tributaries that are not relatively permanent-defined in the guidance as intermittent streams that lack a continuous flow at least seasonally and ephemeral streams that flow only in response to precipitation. 3. Waters and wetlands that are categorically excluded from WOTUS, including swales and certain ditches. The 2008 guidance elaborated on the criteria for wetlands to be considered adjacent to traditionally navigable waters and therefore fall into category one. Under the 2008 guidance, adjacency is established by (1) an unbroken surface or shallow subsurface connection to regulated waters; (2) physical separation from regulated waters by man-made dikes or barriers, natural river berms, beach dunes, and similar features; or (3) proximity to regulated waters that supports an inference of ecological interconnection. EPA and the Corps acknowledged that their written guidance did not provide the public or agency staff with the information needed to ensure timely, predictable, and consistent jurisdictional determinations. The agencies further acknowledged that case-by-case significant nexus determinations were resource and time-intensive. Diverse stakeholders-including Members of Congress, states, the regulated community, and non-governmental organizations-requested a formal rulemaking to revise the existing rules. The 2015 Clean Water Rule In 2015, EPA and the Corps issued the Clean Water Rule (2015 Rule), which redefined WOTUS in the agencies' regulations for the first time since the 1980s. (The 2008 changes following Rapanos came in agency guidance.) In publishing the 2015 Rule, the agencies sought to reduce the universe of waters subject to case-by-case significant nexus analysis. The 2015 Rule retained aspects of the agencies' 2008 guidance, including a three-tiered jurisdictional analysis, but it also incorporated new features. Among other things, EPA and the Corps expanded waters that are categorically WOTUS by broadening the definition of tributaries to include intermittent and ephemeral waters that contribute flow to certain other regulated waters and show physical indicators of a bed, bank, and ordinary high water mark. The agencies adopted numerical distance-based criteria to determine when waters and wetlands are part of WOTUS because they are adjacent to certain regulated waters. For example, the 2015 Rule provides that waters and wetlands within 100 feet of the ordinary high water mark of certain other regulated waters are considered WOTUS. While the Corps and EPA contended that their primary intent of the 2015 Rule was to clarify (rather than enlarge) regulatory jurisdiction, some stakeholders and observers viewed it as an expansion of CWA jurisdiction. ht tps:!crsreports cong --ssqg

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most