November 15, 2018

The WOTUS Rule Repeal

Mark A. Ryan

The Clean Water Act (CWA) regulates discharges of pollutants to “navigable waters.” Congress defined “navigable waters” as “the waters of the United States” (WOTUS) and left it for the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps; collectively the agencies) to further define the reach of the CWA. The law was well settled until 2001 when the Supreme Court limited the agencies’ definition of WOTUS to those waters with a “significant nexus” to downstream navigable-in-fact waters. Solid Waste Agency of Northern Cook Cty. v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC). In 2006, the Supreme Court further confused matters with its split decision in Rapanos v. United States, 547 U.S. 715 (2006), leaving everyone wondering what was now covered by the CWA. The agencies issued a guidance in 2008, EPA/Corps, Clean Water Act Jurisdiction Following the United States Supreme Court’s Decision in Rapanos v. United States and Carabell v. United States (2008 Guidance), but it was hard to follow. Congress couldn’t muster the support for a WOTUS amendment to the CWA, so in 2015 the agencies finally issued a new definition of WOTUS to clarify what was covered by the CWA.

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