White House Finalizes WOTUS Rule

On May 27, 2015, the Obama administration issued new regulations that identify the waters and wetlands the federal government can regulate under the Clean Water Act, or CWA.  The regulations are intended to resolve issues raised by several Supreme Court decisions that narrowed the reach of federal jurisdiction under the act. 

The regulations clarify which waters are considered “Waters of the United States” and are therefore subject to the CWA’s permitting and enforcement provisions.  The rule states that most seasonal and rain-dependent streams, as well as wetlands near rivers and streams, are subject to CWA jurisdiction and automatically are protected under the act. The rule also recognizes that other waters may have a nexus to navigable waters; jurisdiction over these waters would be determined on a case-by-case basis.

The U.S. Environmental Protection Agency, the Army Corps of Engineers and environmental groups say these types of streams and wetlands are critical to protecting drinking water sources, as well as the health of larger downstream water bodies.  However, a broad array of interest groups contend the new regulations would bring more waters under federal oversight and subject them to new permitting requirements and standards.  These parties maintain that the regulations would unnecessarily burden farmers, businesses, private property owners, and state and local governments.

The House voted last month to require EPA and the Army Corps of Engineers to withdraw the rule and set up a consultation process with state and local stakeholders to resolve lingering questions about the scope of jurisdiction under the CWA.  Backers of a similar Senate measure are moving swiftly to advance it. Opponents also are preparing to attempt to block the rule's implementation through the appropriations process.

The vote margin for either approach to block the rule’s implementation while also overcoming a potential veto is expected to be tight.  Moderate senators seen as swing votes have remained apprehensive about commenting as they wade through the nearly 300-page rule. 

The rule is slated to go into effect 60 days after it is published in the Federal Register.  The final rule can be viewed here.