On February 28, 2017, President Trump signed an Executive Order to begin the process of rescinding or revising the infamous Waters of the United States (or WOTUS) Rule. Years in the making, the WOTUS Rule was supposed to clarify which waterbodies fall under the permitting requirements of the US Army Corps of Engineers (Corps) and US Environmental Protection Agency (EPA) under the Clean Water Act.
The permitting regime that predated the WOTUS Rule is likely to remain in effect for years, as EPA and the Corps seek to formulate a new rule or rescind the WOTUS Rule. President Trump's Executive Order also called on the Attorney General to try to freeze ongoing litigation, which would preserve the current regime. EPA and the Corps may apply existing WOTUS rules less aggressively in the current administration, so close calls are more likely to go in favor of the regulated community. If a new rule eventually is issued and survives legal challenges, it is likely to encompass "relatively permanent" waterbodies with a "continuous surface connection" to traditionally navigable waters. Background
The Clean Water Act expressly regulates discharges to "navigable waters," which the statute defines as "waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). The scope of the terms "navigable waters" and "waters of the United States" is relevant under several Clean Water Act programs, including those regulating discharges of dredged or fill material under Section 404 (administered jointly by the Corps and EPA), discharges of pollutants from "point sources" under Section 402 (delegated to most states for permitting under the National Pollution Discharge Elimination System) and spills of oil and hazardous substances under Section 311.
In 1985, the US Supreme Court decided that the term "navigable waters" includes more than just waters that would be deemed "navigable" in the "classical" or traditional sense. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133 (1985).
But the scope of the terms "navigable waters" or "waters of the United States" has remained difficult to define. In Rapanos v. United States, 547 U.S. 715 (2006), the Supreme Court created two definitions. Under one definition, offered by Justice Scalia and endorsed by three other justices, "waters of the United States" are "relatively permanent" waters that hold a "continuous surface connection" to a traditionally navigable water. Under the...