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1 1 (December 28, 2018)

handle is hein.crs/govyxo0001 and id is 1 raw text is: Congressional ______ Research Service Wading Into the Waters of the United States December 28, 2018 The Trump Administration recently unveiled a proposed rule that would redefine the jurisdictional reach of the Clean Water Act. The principal federal law restricting pollution of the nation's surface waters, the Clean Water Act prohibits discharging certain pollutants into the waters of the United States, including the territorial seas without a permit. But what constitutes waters of the United States-or WOTUS- has been the subject of political debate and litigation for more than four decades. The Trump Administration's proposed regulations are intended to provide clarity on what waters and wetlands the Clean Water Act governs, but observers expect legal challenges once the rule is finalized. While the regulations are in proposed form, a string of court decisions related to previous WOTUS interpretations have created a fragmented legal landscape in which waters of the United States means different things in different parts of the nation. A Recent History of WOTUS For more than forty years, all three branches of government have struggled with how to interpret the meaning of waters of the United States in the Clean Water Act (as detailed in this CRS Report). In the Supreme Court's most recent case on the issue from 2006, Rapanos v. United States, the High Court issued a fractured 4-1-4 decision with no majority opinion providing a rationale on how to determine whether a particular waterbody is a water of the United States. Writing for a four-justice plurality, Justice Scalia advocated a bright-line rule whereby the phrase would cover only relatively permanent, standing or continuously flowing bodies of water, such as streams, rivers, or lakes; and wetlands that have a continuous surface connection to other waters subject to the Clean Water Act. Justice Kennedy, by contrast, wrote in a concurring opinion that WOTUS may include waterbodies that possess a significant nexus to traditionally navigable waters. Since Rapanos, courts and commentators have not always agreed on how to apply the Court's fractured opinion in practice. Hoping to provide a simpler, clearer, and more consistent approaches for identifying the geographic scope of the Clean Water Act, the Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps)-the agencies responsible for administering the Clean Water Act- promulgated new regulations in 2015, titled the Clean Water Rule, which redefines WOTUS and incorporates Justice Kennedy's significant nexus test in his Rapanos concurrence. The Obama Administration intended the Clean Water Rule to take effect in August 2015, but numerous plaintiffs, including 31 states, filed suit challenging its legality. The plaintiffs argued, among other things, that the new rule exceeded the agencies' statutory and constitutional authority and did not comply with the Administrative Procedure Act's rulemaking requirements. As this litigation wove its way through the Congressional Research Service https://crsreports.congress.gov LSB10236 CRS Legal Sidebar Prepared for Members and Committees of Congress

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