Written by Ellen Essman and Peggy Hall
What’s old is new again. To what was likely a mixed chorus of cheers and groans heard around the nation, the U.S. EPA and Army Corps of Engineers today announced the repeal of the 2015 Waters of the United States (WOTUS) rule. The action is “Step 1” in the Trump administration’s two-step plan to repeal and replace the WOTUS rule, which establishes the jurisdictional authority of the EPA and Army Corps over waters and waterways. It came in the form of a final rule that not only repeals the 2015 WOTUS rule set in place by the Obama Administration, but also reverts the entire country back to the old regulatory definitions of “waters of the United States” that were developed in 1986 and 1988 rulemakings and further interpreted by U.S. Supreme Court decisions. Those definitions of WOTUS created a lot of confusion and litigation over the actual meaning of WOTUS, which the 2015 WOTUS rule aimed to clear up. Today’s “Step 1” takes us back to older, earlier definition of WOTUS.
Wait—there’s a Step 2?
Back in February, we wrote a blog post when the Trump administration began what is now “Step 2,” proposing a new definition of WOTUS. If that rule becomes final, it will replace the pre-2015 WOTUS definitions put in place by today’s announcement. So, Step 1 involves reverting back to the old WOTUS definition until Step 2, implementing a new definition, is finalized.
The Trump administration’s proposed WOTUS rule scales back the reach of the 2015 WOTUS rule, which many claimed exceeded the agencies’ regulatory authority over waterways and waterbodies in the U.S. Under the currently proposed rule, tributaries that are “ephemeral”—meaning those that are not around for a great deal of time or created by temporary conditions like rainfall or snowmelt—would not be considered as WOTUS. In both the 2015 and pre-2015 WOTUS definitions, at least some ephemeral streams fell under federal regulation. The currently proposed rule also clarifies waters that are not WOTUS by including a list of such waters. The Trump administration states that its proposed rule would encompass fewer ditches, lakes, ponds, and adjacent wetlands than both the 2015 and pre-2015 versions of WOTUS.
So what’s WOTUS now, exactly?
Until the tide turns again, the definition of WOTUS set in place by today’s announcement is the pre-2015 rule, which is as follows:
- All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
- All interstate waters including interstate wetlands;
- All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters: (i) which are or could be used by interstate or foreign travelers for recreational or other purposes; or (ii) from which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or (iii) which are used or could be used for industrial purposes by industries in interstate commerce;
- All impoundments of waters otherwise defined as waters of the United States under this definition;
- Tributaries of waters identified above;
- The territorial seas;
- Wetlands adjacent to waters (other than waters that are themselves wetlands) identified above;
The current WOTUS does not include prior converted cropland or certain waste treatment systems. Importantly, it also contains definitions for the terms wetlands, adjacent, high water, ordinary high water mark and tidal waters—many of these definitions have been the source of the litigation and confusion that led to the 2015 rule.