The scope of waters that are the subject of federal jurisdiction under the Clean Water Act has been the subject of long-standing confusion and uncertainty in the aftermath of several key Supreme Court decisions. In 2014, the Obama Administration issued a proposed rule, Definition of Waters of the United States Under the Clean Water Act, for public comment as a result of two recent Supreme Court Decisions, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), and Rapanos v. United States (Rapanos) in 2001 and 2006, respectively. In SWANCC, the Court decided that the use of waters by migratory birds is not a sufficient basis for federal jurisdiction under the Clean Water Act. In Rapanos, a splintered decision provided 1) ‘relative permanance’ with a connection to traditional navigable waters, and 2) ‘significant nexus’ to navigable waters as bases for determining whether a water is protected under the Clean Water Act. These two decisions have resulted in considerable confusion over what waters are jurisdictional, and therefore increased allocation of federal and state resources to determining this on a case-by-case basis.
The Obama Rule was challenged by several states, industry, agriculture and other regulated entities in numerous courts. In 2015, the United States Court of Appeals for the Sixth Circuit stayed the rule’s enforcement while the Courts evaluated the cases. President Trump signed an executive order on February 28, 2017, to roll back the waters of the United States (WOTUS) rule that the U.S. Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps) promulgated in 2016. The Order is entitled, Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the Waters of the United States Rule. It instructs EPA and the Corps to begin the process of a rule-making to withdraw the WOTUS rule, and to take appropriate actions in the courts where the rule is in litigation.