Trump Administration Updates WOTUS After Court Ruling

The United States Environmental Protection Agency (EPA) is wading back into a regulatory dispute that has created uncertainty for decades: the extent of federal jurisdiction under the Clean Water Act over smaller wetlands and unconnected waterways. The rule, known as the Waters of the United States rule ("WOTUS"), has been the subject of three different U.S. Supreme Court cases and multiple EPA and Army Corps of Engineers rules since 2001.

SCOTUS Impacts

The pre-publication version of the new rule was released in November and aims to align policy with the most recent U.S. Supreme Court case. That 9-0 decision, Sackett v. EPA, was issued in 2023 and substantially narrowed the scope of federal authority to wetlands that have a continuous surface connection to a larger body of water under Clean Water Act jurisdiction. 

The ruling set aside a two-part test established in a 2006 case, Rapanos v. United States. In that split decision, the court created both a "plurality test," where regulated waters had to be relatively permanent bodies, and the "significant nexus" test, where regulated waters needed a substantial connection to larger bodies of water. Regulators in multiple administrations struggled to land on a clear regulatory standard. In Sackett, the Court dropped the significant nexus standard and clarified the plurality test.

The American Planning Association (APA) filed amicus curiae briefs in the Rapanos and Sackett cases.

Decades-Long Uncertainty

Despite the Sackett ruling, clear and final implementation has remained unsettled, with a variety of litigation and attempts at federal legislation continuing. The EPA is now moving to establish a new rule based on Sackett and borrowing elements from a previous approach approved during the first Trump administration in 2020.

The Biden administration issued a WOTUS rule in early 2023 in advance of Sackett. That rule aimed to expand federal coverage and jurisdiction. That rule was subsequently revised following the decision, but it did not answer some key definitional questions raised by the ruling. The new rule provides definitions for key areas of dispute, such as "relatively permanent" and "continuous surface connection."

Proposed Rule

The Proposed WOTUS Rule would add a new exclusion for groundwater, codifying that groundwater is not covered, and reaffirms the existing standard in Sackett that wetlands must be indistinguishable from jurisdictional waters through a continuous surface connection.

According to one legal analysis, the proposed rule also:

• establishes that jurisdictional tributaries must connect to traditional navigable waters either directly or through other features (e.g., a culvert) that provide predictable and consistent flow
• clarifies that ephemeral waters (i.e., those with surface water flowing or standing only in direct response to precipitation) are not jurisdictional because they are not relatively permanent
• removes automatic jurisdiction for "interstate waters"
• adds and expands certain exclusions for prior converted cropland, ditches, and wastewater treatment systems

Agency analysis suggests that the rule will significantly limit the extent of federal regulatory jurisdiction. The core issues surrounding key definitions are important for planners since the scope of the Clean Water Act has implications for development reviews, regulations, and standards. Whether the rule will succeed in resolving decades-long disputes over the issue remains to be seen.

Other EPA Actions

EPA is also working on reconsideration of other key regulations and findings, including eliminating the 2009 "endangerment finding" for carbon emissions that forms the basis for most federal regulatory action on greenhouse gas emissions. The comment period on that proposal closed in September, with final action anticipated soon.