A clear blue lake reflects a scene of a mountain on a clear day; evergreen trees line the shore.

Waters of the United States Rule

In July 2015, EPA final­ized a Waters of the Unit­ed States” (WOTUS) rule that clar­i­fied the scope of pro­tec­tions for Amer­i­can waters under the Clean Water Act. The final rule con­firmed that Clean Water Act pro­tec­tion cov­ers wet­lands and upland waters that many Amer­i­cans rely upon for clean, healthy drink­ing water.

Reg­u­la­to­ry Repeal

2017-2021

  • Feb­ru­ary 2017

    In Feb­ru­ary 2017, the pres­i­dent issued an exec­u­tive order direct­ing the Envi­ron­men­tal Pro­tec­tion Agency (EPA) and the Army Corps of Engi­neers to rescind or revise the WOTUS rule and the addi­tion­al pro­tec­tions that it applies to U.S. waters. 

  • July 2017

    The EPA and the Army Corps sub­se­quent­ly pub­lished an inter­im rule in July 2017 that pro­pos­es to scale back Clean Water Act protections.

  • Sep­tem­ber 2017

    In Sep­tem­ber 2017, a coali­tion of nine attor­neys gen­er­al filed com­ments oppos­ing the repeal, and have vowed to sue the admin­is­tra­tion if it moves for­ward with its plan to remove Clean Water Act pro­tec­tions from impor­tant wet­lands and upland waters.

  • August 2018

    In response to a July 2018 request for addi­tion­al com­ments on the July 2017 inter­im rule, New York Attor­ney Gen­er­al Bar­bara Under­wood led 12 attor­neys gen­er­al in sub­mit­ting com­ments that request­ed that the EPA and the Army Corps with­draw the inter­im rule because the repeal of the 2015 WOTUS rule would be arbi­trary and capri­cious and not in accor­dance with the Clean Water Act.

  • Decem­ber 2018

    In Decem­ber 2018, EPA and the Army Corps final­ly released a pro­posed WOTUS replace­ment rule that advanced a nar­row rede­f­i­n­i­tion of pro­tect­ed Waters of the Unit­ed States.” The pro­posed rule would require a direct sur­face hydro­log­i­cal con­nec­tion before wet­lands would be sub­ject to fed­er­al juris­dic­tion under the Clean Water Act. Sim­i­lar­ly, a trib­u­tary would only receive pro­tec­tion under the Clean Water Act if it is a sur­face water chan­nel that con­tributes peren­ni­al or intern­ment flow to a tra­di­tion­al nav­i­ga­ble water or ter­ri­to­r­i­al sea either direct­ly or indi­rect­ly through anoth­er body of pro­tect­ed water. As a result, EPA doc­u­ments from 2017 sug­gest that eigh­teen per­cent of streams and fifty-one per­cent of wet­lands that cur­rent­ly fall under Clean Water Act pro­tec­tion would no longer do so. Mary­land Attor­ney Gen­er­al Bri­an Frosh imme­di­ate­ly released a state­ment promis­ing to oppose the pro­posed rule.

  • Feb­ru­ary 2019

    In Feb­ru­ary 2019, a rep­re­sen­ta­tive of New York Attor­ney Gen­er­al Leti­tia James tes­ti­fied at a pub­lic hear­ing in oppo­si­tion to the Decem­ber 2018 replace­ment rule. The tes­ti­mo­ny not­ed that the pro­posed replace­ment rule would sharply reduce the num­ber of bod­ies of water pro­tect­ed by the Clean Water Act, cit­ing EPA’s 2017 doc­u­ments. Addi­tion­al­ly, the replace­ment rule would do away with for­mer Supreme Court Jus­tice Antho­ny Kennedy’s legal­ly- and sci­en­tif­i­cal­ly-sound sig­nif­i­cant nexus” stan­dard, which pro­tects bod­ies of water that have a sig­nif­i­cant nexus” to water qual­i­ty in oth­er pro­tect­ed bod­ies of water.

  • April 2019

    In April 2019, New York Gen­er­al James led a coali­tion of 15 attor­neys gen­er­al in fil­ing com­ments in oppo­si­tion to the pro­posed WOTUS replace­ment rule. The com­ments not­ed that the pro­pos­al would adverse­ly affect water qual­i­ty, con­trary to the Clean Water Act’s objec­tive to restore and main­tain the chem­i­cal, phys­i­cal, and bio­log­i­cal integri­ty of the Nation’s waters” as the pro­pos­al would sig­nif­i­cant­ly reduce the wet­lands and water bod­ies that would receive pro­tec­tion under the Act.

    The attor­neys gen­er­al also com­ment­ed that the nar­row rede­f­i­n­i­tion of the waters of the Unit­ed States” aban­dons the Supreme Court’s gov­ern­ing sig­nif­i­cant nexus” stan­dard with­out ade­quate expla­na­tion or suf­fi­cient jus­ti­fi­ca­tion. Addi­tion­al­ly, the pro­pos­al is arbi­trary and capri­cious in vio­la­tion of the Admin­is­tra­tive Pro­ce­dure Act (APA) as it is incon­sis­tent with the Clean Water Act and fails to engage with the exten­sive sci­en­tif­ic record that sup­port­ed the pro­mul­ga­tion of the 2015 WOTUS rule.

  • Octo­ber 2019

    In Octo­ber 2019, the EPA pub­lished a final rule that repealed the 2015 WOTUS rule and restored the 1986 reg­u­la­to­ry def­i­n­i­tion of Waters of the Unit­ed States.” This recod­i­fi­ca­tion rule is the first step in the agency’s effort to pro­mul­gate a new, replace­ment rule defin­ing Waters of the Unit­ed States.”

  • Jan­u­ary 2020

    In Jan­u­ary 2020, the EPA com­plet­ed the sec­ond step in its effort to pro­mul­gate a new def­i­n­i­tion of Waters of the Unit­ed States.” The agency released its final replace­ment rule for the 2015 rule, the so-called Nav­i­ga­ble Waters Pro­tec­tion rule. The rule nar­rowed the def­i­n­i­tion of Waters of the Unit­ed States” along the lines it pro­posed in its Decem­ber 2018 draft rule, great­ly restrict­ing Clean Water Act pro­tec­tion for wet­lands and tributaries.

    Imme­di­ate­ly after the release of the final rule, Cal­i­for­nia Attor­ney Gen­er­al Becer­ra, Mass­a­chu­setts Attor­ney Gen­er­al Mau­ra Healey, Mary­land Attor­ney Gen­er­al Frosh, New York Attor­ney Gen­er­al James, Vir­ginia Attor­ney Gen­er­al Mark Her­ring and Wash­ing­ton Attor­ney Gen­er­al Bob Fer­gu­son released state­ments express­ing oppo­si­tion to the final rule that guts crit­i­cal Clean Water Act pro­tec­tions. Lat­er in Jan­u­ary 2020, Michi­gan Attor­ney Gen­er­al Dana Nes­sel released her own state­ment in oppo­si­tion to the so-called Nav­i­ga­ble Waters Pro­tec­tion rule.

Lit­i­ga­tion Over the 2020 Rule

2017-2021

California Federal District Court Litigation

  • May 2020

    In May 2020, a coali­tion of eigh­teen attor­neys gen­er­al led by Cal­i­for­nia Attor­ney Gen­er­al Becer­ra and New York Attor­ney Gen­er­al James filed a law­suit in a Cal­i­for­nia fed­er­al dis­trict court against the EPA chal­leng­ing its Nav­i­ga­ble Waters Pro­tec­tion rule. In their suit, the attor­neys gen­er­al assert­ed that the 2020 rule is unlaw­ful under the APA and not­ed that the dras­ti­cal­ly nar­rowed def­i­n­i­tion of Waters of the Unit­ed States” con­flicts with the text of the Clean Water Act and con­tra­dicts the Clean Water Act’s objec­tives. The coali­tion also high­light­ed that the rule over­looks the EPA’s pri­or sci­en­tif­ic find­ings and rec­om­men­da­tions from the EPA’s Sci­ence Advi­so­ry Board, and arbi­trar­i­ly and capri­cious­ly reduces and elim­i­nates pro­tec­tions for down­stream waters, includ­ing ephemer­al streams and wetlands.


    Less than three weeks lat­er, the coali­tion of attor­neys gen­er­al returned to the same fed­er­al dis­trict court in Cal­i­for­nia to seek a pre­lim­i­nary injunc­tion to pro­hib­it the imple­men­ta­tion of the Nav­i­ga­ble Waters Pro­tec­tion rule. The motion from the attor­neys gen­er­al assert­ed that a pre­lim­i­nary injunc­tion is nec­es­sary to pre­vent sig­nif­i­cant and irrepara­ble harm to water­ways across the coun­try as the rule weak­ens water qual­i­ty pro­tec­tions, includ­ing for for­mer­ly pro­tect­ed streams and wetlands.

  • June 2020

    In June 2020, the Cal­i­for­nia fed­er­al dis­trict court deter­mined that the states had not met the stan­dard for grant­i­ng the pre­lim­i­nary injunc­tion request and reject­ed the motion for pre­lim­i­nary injunction. 

  • Novem­ber 2020

    In Novem­ber 2020, Cal­i­for­nia Attor­ney Gen­er­al Becer­ra led the coali­tion of attor­neys gen­er­al in fil­ing a motion for sum­ma­ry judg­ment in the lit­i­ga­tion. The motion not­ed that the agency process to issue the Nav­i­ga­ble Waters Pro­tec­tion rule was arbi­trary and capri­cious in vio­la­tion of the APA as the EPA and the Army Corps did not explain how the rule met the Clean Water Act’s objec­tive of main­tain­ing the integri­ty of the Nation’s waters. Fur­ther, the attor­neys gen­er­al argued that the rule rep­re­sents an imper­mis­si­ble inter­pre­ta­tion of the Clean Water Act under rel­e­vant Supreme Court prece­dent because it excludes ephemer­al streams from pro­tec­tion under the statute.

Colorado Federal District Court Litigation

  • May 2020

    At the end of May 2020, Col­orado Attor­ney Gen­er­al Phil Weis­er filed a law­suit chal­leng­ing EPA’s Nav­i­ga­ble Waters Pro­tec­tion rule in the fed­er­al dis­trict court in his state. The law­suit requests the court declare the rule unlaw­ful because it was pro­mul­gat­ed in vio­la­tion of the Clean Water Act, the APA and the Nation­al Envi­ron­men­tal Pol­i­cy Act. Fur­ther, Attor­ney Gen­er­al Weis­er is seek­ing injunc­tive relief in the form of pro­hibit­ing the EPA and Army Corps of Engi­neers from using, apply­ing, imple­ment­ing, enforc­ing or oth­er­wise pro­ceed­ing on the basis of the final rule.

  • June 2020

    A few weeks lat­er in June 2020, the Col­orado fed­er­al dis­trict court grant­ed Attor­ney Gen­er­al Weiser’s motion for pre­lim­i­nary injunc­tion. The fed­er­al judge found that Col­orado had estab­lished that the state was like­ly to suc­ceed on the mer­its in its chal­lenge to the 2020 rule, that the state would like­ly suf­fer irrepara­ble harm in the absence of pre­lim­i­nary relief, that the bal­ance of equi­ties tipped in Colorado’s favor, and that an injunc­tion is in the pub­lic interest.

    With­in a week of the June 2020 order, the EPA and Army Corps filed a notice of appeal of the pre­lim­i­nary injunc­tion order in the Tenth Circuit. 

  • July 2020

    In July 2020, the EPA and the Army Corps filed their open­ing brief in the Tenth Cir­cuit seek­ing to have the pre­lim­i­nary injunc­tion lifted.

  • August 2020

    In August 2020, Col­orado Attor­ney Gen­er­al Weis­er filed his state’s answer brief, not­ing that the Col­orado fed­er­al dis­trict court had prop­er­ly deter­mined that Col­orado had sat­is­fied the four fac­tors required for it to obtain a pre­lim­i­nary injunc­tion. Specif­i­cal­ly, the state was like­ly to suc­ceed on the mer­its; the state was like­ly to suf­fer irrepara­ble harm in the absence of pre­lim­i­nary relief; the bal­ance of equi­ties tipped in the state’s favor; and the pub­lic inter­est favored pre­serv­ing the sta­tus quo. The brief request­ed the Tenth Cir­cuit affirm the dis­trict court’s order. 

  • Novem­ber 2020

    Oral argu­ments were held in the Tenth Cir­cuit in Novem­ber 2020.

  • March 2021

    In March 2021, the Tenth Cir­cuit vacat­ed the injunction.

Massachusetts Federal District Court Litigation

  • April 2020

    In April 2020, a coali­tion of envi­ron­men­tal orga­ni­za­tions filed a law­suit in fed­er­al dis­trict court in Mass­a­chu­setts chal­leng­ing the Nav­i­ga­ble Waters Pro­tec­tion rule. 

  • Octo­ber 2020

    The envi­ron­men­tal orga­ni­za­tions filed a motion for sum­ma­ry judge­ment in the lit­i­ga­tion in Octo­ber 2020.

  • Decem­ber 2020

    In Decem­ber 2020, Mass­a­chu­setts Attor­ney Gen­er­al Healey led a coali­tion of 15 attor­neys gen­er­al in fil­ing an ami­cus brief in sup­port of the motion for sum­ma­ry judg­ment. The coali­tion high­light­ed that the rea­son­ing the admin­is­tra­tion relied on to jus­ti­fy the roll­back was con­trary to the pur­pose of the Clean Water Act. In addi­tion, the coali­tion not­ed that by declin­ing to con­duct a com­pre­hen­sive review of the scope of waters that would be left unpro­tect­ed by the reg­u­la­tion and ignor­ing that the rule’s reduc­tion in fed­er­al pro­tec­tions will lead to seri­ous degra­da­tion of eco­log­i­cal resources, the admin­is­tra­tion dis­re­gard­ed the sig­nif­i­cant harms that the reg­u­la­tion will inflict on states.

Lit­i­ga­tion Over the 2015 Rule

2017-2021

In Jan­u­ary 2018, the Supreme Court ruled that lit­i­ga­tion over the WOTUS rule must begin in fed­er­al dis­trict courts. Cur­rent­ly, sev­er­al fed­er­al dis­trict courts across the coun­try are hear­ing chal­lenges to the 2015 WOTUS rule. The EPA pub­lished a final rule to sus­pend the applic­a­bil­i­ty date of the 2015 WOTUS rule by two years in Jan­u­ary 2018.

New York Federal District Court Litigation

  • Feb­ru­ary 2018

    In Feb­ru­ary 2018, the New York Attor­ney Gen­er­al led a coali­tion of 11 attor­neys gen­er­al that chal­lenged the sus­pen­sion rule in fed­er­al dis­trict court in New York. 

  • March 2019

    In March of the fol­low­ing year, the fed­er­al dis­trict court dis­missed as moot the suit by New York and oth­er states as EPA vol­un­tar­i­ly dis­missed their appeals in the Fourth and Ninth Cir­cuit Court of Appeals of dis­trict court orders that vacat­ed the sus­pen­sion rule.

  • Decem­ber 2019

    Fol­low­ing the pub­li­ca­tion of the Octo­ber 2019 recod­i­fi­ca­tion rule (above), New York Attor­ney Gen­er­al Leti­tia James led a coali­tion of fif­teen attor­neys gen­er­al in Decem­ber 2019 in fil­ing a sep­a­rate legal chal­lenge to the recod­i­fi­ca­tion rule in fed­er­al dis­trict court in New York. The law­suit not­ed that the recod­i­fi­ca­tion rule is arbi­trary and capri­cious in vio­la­tion of the APA because it fails to apply con­trol­ling Supreme Court case law. The attor­neys gen­er­al request­ed that the court declare the recod­i­fi­ca­tion rule unlaw­ful and vacate it.

South Carolina Federal District Court Litigation

  • August 2018

    In August 2018, a fed­er­al dis­trict court in South Car­oli­na issued an injunc­tion that lift­ed the sus­pen­sion rule in 22 states. The court found that the EPA and the Army Corps, in issu­ing the sus­pen­sion rule, had not solicit­ed the req­ui­site pub­lic com­ments on sus­pend­ing the 2015 rule and had failed to con­sid­er the sub­stan­tive impli­ca­tions of sus­pend­ing the 2015 rule.

Ohio Federal District Court Litigation

  • March 2019

    In March 2019, Michi­gan Attor­ney Gen­er­al Dana Nes­sel with­drew Michi­gan from lit­i­ga­tion in which the state was a part of a coali­tion of states chal­leng­ing the 2015 WOTUS rule in fed­er­al dis­trict court in Ohio.

    Also in March 2019, a fed­er­al dis­trict court in Ohio denied a motion for a pre­lim­i­nary injunc­tion to block the effec­tive­ness of the 2015 WOTUS rule in two of the 22 states in which the South Car­oli­na fed­er­al dis­trict court order had lift­ed the sus­pen­sion rule. The Ohio dis­trict court order also grant­ed a motion from a coali­tion of 10 attor­neys gen­er­al led by the New York Attor­ney Gen­er­al to par­tic­i­pate in the Ohio dis­trict court lit­i­ga­tion as amici.

  • May 2019

    In May 2019, plain­tiff states Ohio and Ten­nessee filed a notice of appeal with the Ohio fed­er­al dis­trict court of the denial of the pre­lim­i­nary injunc­tion to block effec­tive­ness of the 2015 WOTUS rule. The appeal fol­lowed the dis­trict court’s denial of the states’ request to recon­sid­er the denial of the pre­lim­i­nary injunc­tion ear­li­er in May. In August 2020, the Sixth Cir­cuit dis­missed the appeal as moot due to the repeal of the 2015 WOTUS rule.

North Dakota Federal District Court Litigation

  • March 2019

    In March 2019, Col­orado Attor­ney Gen­er­al Weis­er with­drew his state from lit­i­ga­tion in which Col­orado was part of a coali­tion of states chal­leng­ing the 2015 WOTUS rule in lit­i­ga­tion in fed­er­al dis­trict court in North Dako­ta. Three days lat­er New Mex­i­co Attor­ney Gen­er­al Hec­tor Balderas with­drew his state from the same coali­tion of states in the North Dako­ta litigation.

  • May 2019

    In May 2019, the fed­er­al dis­trict court in North Dako­ta grant­ed the motions by Col­orado and New Mex­i­co, which lift­ed the pre­lim­i­nary injunc­tion of the 2015 WOTUS rule in at least Col­orado (the court order was unclear as to whether the pre­lim­i­nary injunc­tion would remain in effect in parts or all of New Mex­i­co as a coali­tion of ten New Mex­i­can coun­ties are chal­leng­ing the 2015 rule).

Georgia Federal District Court Litigation

  • April 2019

    In April 2019, Wis­con­sin Attor­ney Gen­er­al Josh Kaul with­drew Wis­con­sin from lit­i­ga­tion in fed­er­al dis­trict court in Geor­gia in which it was a mem­ber of a coali­tion of states oppos­ing the 2015 WOTUS rule.