Waters of the United States

Jacqueline Mietus
Associate Editor
University Chicago School of Law, JD 2019

The Obama administration’s “Clean Water Rule” was designed to control pollution in approximately 60% of the country’s bodies of water. The Rule primarily extended current federal regulations to smaller bodies of water, requiring that pollution of rivers and wetlands be held to the same environmental penalties as larger bodies of water. However, the Trump administration has suspended enforcement of the regulation for two years. During that time, they will re-consider the definition of “waters of the United States.” The Trump administration intends to release a new version this year.

2015 Clean Water Rule

In 2015, the Environmental Protection Agency (“EPA”) and the Army Corps of Engineers promulgated the Clean Water Rule, more commonly known as the Waters of the United States rule (“Rule”), under the authority of the 1972 Clean Water Act. The Rule re-defined the application of the Clean Water Act. The Rule was crafted to control pollution in approximately 60% of the country’s bodies of water, extending existing federal regulations of large bodies of water to include small bodies of water, such as rivers and wetlands.

The Rule had an effective date of August 28, 2015. However, the Court of Appeals for the Sixth Circuit issued an order staying the Rule’s implementation. In January 2017, following uncertainty over this litigation, the Supreme Court agreed to determine which federal courts have original jurisdiction to hear those lawsuits. In January 2018, the Supreme Court unanimously held that federal district courts had original jurisdiction to hear cases regarding the Clean Water Act. Thus, the Sixth Circuit did not have the authority to issue a stay.

“This win, coupled with the administration’s actions in proposing to repeal the rule and seek input on how to properly define ‘waters of the U.S.,’ puts us one step closer to addressing this deeply problematic rule and the confusion it has created,” said National Mining Association President and CEO, Hal Quinn.


During his campaign, President Trump called the Rule one of the worst examples of federal regulation. After taking office, on February 28, 2017, Trump issued Executive Order 13778: “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule,” which directed Scott Pruitt, the EPA Administrator, to begin the process of rescinding and replacing the Rule. In January 2018, Pruitt filed the legal documents necessary to suspend the Rule for two years.

During these two years, the EPA and the United States Department of the Army will re-consider the Rule, specifically the definition of “waters of the United States.” Re-defining “waters of the United States” (also referred to as “WOTUS”) may change which bodies of water will be regulated under the Clean Water Act. “The 2015 WOTUS rule developed by the Obama administration will not be applicable for the next two years, while we work through the process of providing long-term regulatory certainty across all 50 states about what waters are subject to federal regulation,” said Pruitt.

The Trump administration plans to release a new version later this year, which is expected to have looser regulatory requirements than the Rule under the Obama administration.

Reactions to Suspension

The Obama administration’s Rule was hailed by environmentalists and criticized by farmers, ranchers, and real estate developers who claimed it was an infringement of their property rights. As a reversal of the policy, Trump’s suspension of the Rule and subsequent re-defining of “waters of the United States” has been met with opposition from environmentalists and praise from the aforementioned landowners.

Wyoming Senator John Barrasso, Chairman of the Senate Environment and Public Works Committee, asserted, “The Obama administration’s outrageous Waters of the United States rule would have put backyard ponds, puddles, and farm fields under Washington’s control. Today’s action will give Wyoming’s ranchers, farmers, small businesses, and communities clarity.”

In contrast, environmentalists strongly oppose the Rule’s suspension and have threatened to sue. Jon Devine, a senior attorney with the Natural Resources Defense Council, stated, “The Clean Water Rule protects the bodies of water that feed the drinking water supply for one in three Americans. EPA Administrator Scott Pruitt is racing the clock to deny protections for our public health and safety. It’s grossly irresponsible, and illegal — and we’ll challenge it in court.”