EPA Finalizes Rule Protecting 'Waters of the United States'

Today, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers issued a final rule identifying waters protected under the Clean Water Act. The rule defines the term “waters of the United States”—sometimes referred to as “WOTUS”— and tracks the agencies’ longstanding approach for protecting our nation’s waters. The rule is based on an extensive scientific record, including hundreds of studies highlighting the ways waters affect each other and thus must be protected.

EPA’s revised definition comes after Earthjustice filed two lawsuits on behalf of tribes and environmental organizations to challenge Trump’s Navigable Waters Protection Rule, which stripped protections from a large percentage of our nation’s waterways. In August 2021, an Arizona court ruled in favor of Earthjustice and our clients in one of those cases, held that the Trump rule violated federal laws, and vacated it because of its potential to cause significant harm to the nation’s waters. The Biden Administration committed to a new rulemaking process, which led to the rule finalized today.

“This rule tracks the familiar framework that the agencies have applied for decades to protect our Nation’s waters,” said Stuart Gillespie, senior attorney with Earthjustice. “The agencies grounded their approach in the scientific record, which underscores the many waters are connected and thus must be protected to safeguard downstream communities and the environment. The rule also resoundingly rejects the Trump-era approach, which unlawfully and unscientifically rolled back Clean Water Act longstanding protections.”

However, the Supreme Court is considering a case in which it might rewrite the legal principles that serve as the foundation of this new rule. After EPA and the Corps initially proposed this rule, the Court decided to hear the case of Sackett v. EPA, in which the plaintiffs are challenging the applicability of the Clean Water Act to thousands of wetlands. The Court’s move, and the views expressed by some Justices at oral argument, raise further concerns about the Court’s willingness to disregard traditional principles of judicial restraint in service of a deregulatory, pro-industry, and anti-environment agenda. The extensive scientific record that accompanies this new rule highlights the scale and complexity of the technical issues that agencies must consider in implementing the Clean Water Act, and further illustrates why the Court should tread cautiously when considering major changes to the law in this area.

When Congress enacted the Clean Water Act in 1972, lawmakers gave EPA and the Army Corps the authority and responsibility to protect all the “waters of the United States,” and to restore and maintain the chemical, physical, and biological integrity of our waters. The Supreme Court’s decision to take up the Sackett case before the agencies finalized this rule raises questions about its agenda and threatens to undercut protections for our nation’s waters even as this rule seeks to strengthen them. We expect the Supreme Court to issue its decision in early 2023.