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The Jurisdictional Water Question Remains: EPA and the Army Corps of Engineer’s New Rule Needs Congressional Legislative Amendments to the Clean Water Act

The Jurisdictional Water Question Remains: EPA and the Army Corps of Engineer’s New Rule Needs Congressional Legislative Amendments to the Clean Water Act

Bryanna Kleber 

Until 2015, the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps) had not amended their definitions of “waters of the United States” (WOTUS) since 1979 and 1986, respectively.[1] On May 27, 2015, President Obama announced the EPA and Corps’ jointly proposed Definition of “Waters of the United States” Rule (Clean Water Rule), which was issued under the Clean Water Act of 1972 (CWA).[2] When the final rule was announced, there was immediate pushback.[3] Republican lawmakers proposed bills to overturn the Rule, and different interest groups prepared lawsuits.[4] The EPA, the Corps, and President Obama maintained the new Rule was necessary to protect the waters that so many Americans depend on.[5]

Despite the strong negative reactions to the announcement of the rule, the final Rule was published in the Federal Register on June 29, 2015, to become effective August 28, 2015.[6] The day the Rule was published in the Federal Register, lawsuits were filed against the EPA and Corps.[7] On June 29, 2015, states grouped together to make their claims against the new CWA rule.[8] Within a week, 29 states had filed suit asking for preliminary injunctions.[9] By mid-July, more than 12 national agricultural and production organizations also filed suit against the EPA.[10]

A day before the Rule was to take effect, on August 27, 2015, a federal district court in North Dakota ordered a preliminary injunction blocking the Clean Water Rule.[11] The next day, the EPA could only implement the regulation in the states that were not a party to the North Dakota lawsuit.[12] In October 2015, another decision set EPA and the Corps back. The 18 other states’ lawsuits that had been filed in four separate claims were transferred to and consolidated in the Sixth Circuit Court of Appeals.[13] On October 9, the Sixth Circuit issued a nationwide stay against the enforceability of the new Rule.[14]

In addition to the lawsuits and court orders, both the United States House and Senate have passed bills to block EPA from implementing the Clean Water Rule.[15] On January 13, 2016, the House passed a joint resolution that the Senate already passed to overturn the Rule, but Obama vetoed the bill.[16]

This Note addresses the process the EPA and Corps went through to create the Clean Water Rule, how they reached the final definition, and why this Rule is better than the status quo, but should do more to protect our Nation’s waters. Specifically, this Note analyzes the new Rule by looking at the history of government control of water and how jurisdictional waters have been defined in the past. This Note urges the EPA request a voluntary remand to amend the Rule, making its jurisdiction broader. Finally, this Note suggests that the CWA be amended in order to accommodate a satisfactory and effective definition of WOTUS.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.


[1] National Pollutant Discharge Elimination System; Revision of Regulations, 40 C.F.R. § 122.2 (2015); 33 C.F.R. § 328.3(a) (2015).

[2] Coral Davenport, Obama Announces New Rule Limiting Water Pollution, N.Y. Times (May 27, 2015), http://www.nytimes.com/2015/05/28/us/obama-epa-clean-water-pollution.html.

[3] See Amena H. Saiyid, Obama Say Water Jurisdiction Rule Provides Clarity, Certainty; Critics Claim Overreach, Daily Env’t Rep. (May 28, 2015), http://www.bna.com/obama-says-water-n17179927115/ (“Critics, including industry groups and certain members of Congress, say the rule is a significant regulatory overreach.”).

[4] Davenport, supra note 2.  

[5] Saiyid, supra note 3.

[6] Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg. 37,054 (Aug. 28, 2015) (to be codified at 40 C.F.R. pts. 110, 112, 116, 117, 122, 230, 232, 302, and 401).

[7] Vidya Kauri, EPA, Army Corps Slam States’ Bid for Water Rule Injunction, Law360 (Sept. 17, 2015, 8:49 PM ET), http://www.law360.com/articles/703752.

[8] Ron Arnold, Environmental Protection Agency Flooded with Lawsuits Over Controversial Water Rule, Daily Caller (July 21, 2015, 11:15 AM) http://dailycaller.com/2015/07/21/environmental-protection-agency-flooded-with-lawsuits-over-controversial-water-rule/.

[9] Id. (“Utah and 8 others filed with Georgia in Augusta’s U.S. Court; Alaska and 11 others filed with North Dakota in Bismark. Days later Mississippi and Louisiana filed with Texas in Galveston; Michigan filed with Ohio in Columbus; Oklahoma filed alone in Oklahoma City.”).

[10] Id.

[11] North Dakota v. EPA, Civ. No. 3:15-cv-59 (D.N.D. Aug. 27, 2015).

[12] National Notices and Program Initiatives, US Army Corps of Engineers (Aug. 28, 2015), http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/NationalNoticesandProgramInitiatives.aspx.

[13] Ohio v. Army Corps of Engineers, Nos. 15-3799/3822/3853/3997 at 2 (6th Cir. Oct. 9, 2015).

[14] Id. at 6 (ordering a nationwide stay against the implementation of the Clean Water Rule.).

[15] H.R. 2028, 114th Congress (as passed by the House, May 1, 2015); S.J. Res. 22, 114th Congress (as passed by Senate, Nov. 4, 2015).

[16] S.J. Res. 22, 114th Congress (as passed by the House, Jan. 13, 2016).

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