Clean Water Rule

Clean Water Rule
Name	Clean Water Rule
Other names	Waters of the United States Rule
Jurisdiction	United States
Enacted	2015
Administered by	Environmental Protection Agency; United States Army Corps of Engineers
Status	revised and subject to litigation

Clean Water Rule The Clean Water Rule was a 2015 regulatory definition promulgated by the Environmental Protection Agency and the United States Army Corps of Engineers to clarify the scope of waters protected under the Clean Water Act of 1972. It sought to define the phrase "waters of the United States" to resolve disputes arising from Supreme Court decisions such as United States v. Riverside Bayview Homes, Inc., Rapanos v. United States, and Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers. The Rule aimed to provide clearer guidance for permitting under Section 404 and to balance interests represented by stakeholders including Environmental Defense Fund, National Association of Manufacturers, and state agencies like the California Environmental Protection Agency.

Background

The need for a clarified jurisdictional definition emerged after landmark cases including United States v. Riverside Bayview Homes, Inc. (1985), which affirmed broad Corps authority, and the fragmented plurality/concurrence in Rapanos v. United States (2006), which produced competing tests for tributary and significant nexus connections. Subsequent litigation such as Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (2001) limited federal reach over isolated wetlands, prompting rulemaking efforts during administrations of George W. Bush and Barack Obama. Scientific input incorporated findings from agencies like the United States Geological Survey and reports such as the EPA Science Advisory Board reviews and interagency panels convened under Council on Environmental Quality processes.

Legal Foundation and Definitions

The Rule derived authority from the Clean Water Act and administrative law doctrines adjudicated in cases like Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. and Massachusetts v. Environmental Protection Agency. It adopted definitions distinguishing perennial, intermittent, and ephemeral tributaries, identifying adjacent wetlands, and applying a "significant nexus" standard tied to precedents from Rapanos v. United States. Definitions referenced statutory actors including the United States Department of Justice and relied on analytical frameworks used by the National Academy of Sciences and the Council on Environmental Quality.

Rulemaking and Implementation

Rule development involved negotiated rulemaking committees, public notices under the Administrative Procedure Act, and interagency coordination with bodies such as the National Oceanic and Atmospheric Administration and the Department of the Interior. The agencies issued technical guidance documents informed by research from institutions like the Smithsonian Institution and the U.S. Fish and Wildlife Service. Implementation plans engaged regional offices of the Environmental Protection Agency and division offices of the United States Army Corps of Engineers, and sought to streamline permitting under Section 404 of the Clean Water Act and the National Pollutant Discharge Elimination System programs.

Challenges and Litigation

Shortly after promulgation, the Rule faced legal challenges filed in federal courts by a coalition of states led by plaintiffs from North Dakota, Texas, and Michigan, and industry groups such as the National Association of Home Builders and American Farm Bureau Federation. Litigation navigated circuits including the United States Court of Appeals for the Sixth Circuit and ultimately entered debates in the United States Supreme Court over jurisdictional reach and administrative authority. Cases invoked constitutional doctrines like the Tenth Amendment alongside procedural claims under the Administrative Procedure Act.

Environmental and Economic Impacts

Proponents including Natural Resources Defense Council and Sierra Club argued the Rule would enhance protection for headwaters feeding major basins like the Mississippi River Basin and safeguard habitats for species listed under the Endangered Species Act. Opponents including trade groups and some state agencies argued the Rule would increase compliance costs for sectors represented by U.S. Chamber of Commerce, affect agricultural operations overseen by the United States Department of Agriculture, and impose permitting burdens on infrastructure projects such as those by Union Pacific Railroad and ExxonMobil. Economic analyses referenced studies from the Congressional Research Service and the Environmental Protection Agency estimating costs and benefits across industries and ecosystems.

Revisions and Rescission

Under the Donald Trump administration, agencies initiated actions to rescind and replace the Rule, proposing new definitions that narrowed jurisdiction and publishing a 2020 replacement rule. That revision prompted additional litigation and partial court vacatur in several circuits, while subsequent policy shifts during the Joe Biden administration sought to restore or re-evaluate protections through new rulemaking and executive actions. The oscillation reflected broader statutory and regulatory debates involving the United States Department of Justice and congressional actors such as members of the United States Senate Committee on Environment and Public Works.

Public and Stakeholder Response

Public engagement included millions of comments submitted by organizations like Earthjustice, corporations such as Dow Chemical Company, state governments including New York (state), and tribal representatives such as the Cherokee Nation. Advocacy campaigns mobilized grassroots networks including 350.org and policy coalitions like the Environmental Council of the States, while business coalitions like the American Farm Bureau Federation organized legal and legislative responses. Media coverage appeared in outlets including The New York Times, The Washington Post, and trade press such as E&E News.

Category:United States environmental law Category:Environmental protection