Waters of the United States (WOTUS) Primer A Breakdown of Policies and Actions Taken April 27, 2016 Producer: Claire Carter Edited by: Katharine Conlon Director: Afzal Bari

WATERS OF THE U.S. 1 Waters of the United States Expands Regulatory Power Through Definition The Waters of the U.S. Rule Analysis The descriptive outline of all waters that are defined as the Waters of the U.S. is important because it determines which waters come under control of the Clean Water Act. The applicability to prairie potholes, Carolina bays and Delmarva bays, pocosins, Western vernal pools, and Texas coastal prairie wetlands are determined on a case by case basis. Items specifically denoted as not waters of the U.S. are ditches, artificially created ponds and lakes, puddles, groundwater, and wastewater recycling structures in dry land. Previously the Clean Waters Act only applied to navigable waters. April 27, 2016 | Claire Carter Source: Environmental Protection Agency, “ Clean Water Rule: Definition of ‘Waters of the United States’,” August 28, All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (ii) All interstate waters, including interstate wetlands; (iii) The territorial seas; (iv) All impoundments of waters otherwise identified as waters of the United States under this section; (v) All tributaries, as defined in paragraph (o)(3)(iii) of this section, of waters identified in paragraphs (o)(1)(i) through (iii) of this section; (vi) All waters adjacent to a water identified in paragraphs (o)(1)(i) through (v) of this section, including wetlands, ponds, lakes, oxbows, impoundments, and similar waters;

WATERS OF THE U.S. 2 Since 1972 the Clean Water Act Has Been Responsible for Controlling Water Pollution History and Summary of Clean Water Act Principle Purpose Establishes the basic structure for regulating discharges of pollutants into the waters of the U.S. and regulating quality standards for surface waters. April 27, 2016 | Claire Carter Source: Environmental Protection Agency, “ Clean Water Rule: Definition of ‘Waters of the United States’,” August 28, 2015; Noun Project, Yu Luck The Federal Water Pollution Control Act was the precursor to the Clean Water Act and was the first U.S. Law to address water pollution In 1972, numerous amendments were added due to growing public awareness and concern for controlling water pollution and Federal Water Pollution Control Act became the Clean Water Act Amendments modified earlier provisions so streamline the municipal construction grants process and improves the capabilities of facilities build under the program The State’s Water Pollution Control Revolving Fund replaces the construction grants and it was a new funding strategy that addressed water quality needs by building on EPA-state partnerships The Waters of the U.S. Final Rule is published by the EPA as a way to define over which waters the Clean Water Act applies. Pollution Control Programs Includes setting wastewater standards for industry Water Quality Standards Set for all contaminants present in surface waters. National Pollutant Discharge Elimination System Makes it unlawful to discharge any pollutant from a point source without a permit. Timeline of Clean Water Act

WATERS OF THE U.S. 3 The Waters of the U.S. Rule Specifies Reach of the EPA Implications of Waters of the U.S. Rule April 27, 2016 | Claire Carter Source: Environmental Protection Agency, “ Clean Water Rule: Definition of ‘Waters of the United States’,” August 28, 2015; Timothy Cama, “Federal Judge Blocks Obama’s Water Rule,” The Hill, August 27, 2015; Timothy Cama, “Court Blocks Obama’s Water Bill Nationwide,” The Hill, October 9, 2015; Timothy Cama, “States Sue to Block Obama’s Water Rule,” The Hill, June 29,2015; Noun Project, Yu Luck, Anna, Oliver Kittler, and Artworkbean. This rule will provide the clarity and certainty businesses and industry need about which waters are protected by the Clean Water Act, and it will ensure polluters who knowingly threaten our waters can be held accountable.” - President Obama on Waters of the U.S. Rule “ The administration’s decree to unilaterally expand federal authority is a raw and tyrannical grab that will crush jobs…” - Then House Speaker John Boehner on Waters of the U.S. “ Clarification from Supreme Court Cases Two Supreme Court cases SWANCC V. U.S. Army Corps and Rapanos v. United States had stated that waters of the U.S. as stated in the Clean Water Act was too broad and the EPA created the official Waters of the U.S. Rule to clarify jurisdiction. Physical Change in Coverage The refined definition of “waters of the U.S.” only covers 3% more area than it did under the prior general definition. Coverage is still, in fact, lower than it was during the Clinton administration. Excluded Lands and Waters Following public comment, the Agency specified waters that were not waters of the U.S. and includes converted cropland, waste treatment systems, groundwater, erosional features, and certain ditches.

WATERS OF THE U.S. 4 Policymakers Mobilize to Block Waters of the U.S. Rule Actions to Block Implementation of Waters of the U.S. Rule April 27, 2016 | Claire Carter Source: Congress.gov, “S.J. Res.22,” January 21, 2016; Timothy Cama, “Federal Judge Blocks Obama’s Water Rule,” The Hill, August 27, 2015; Timothy Cama, “Court Blocks Obama’s Water Bill Nationwide,” The Hill, October 9, 2015; Timothy Cama, “States Sue to Block Obama’s Water Rule,” The Hill, June 29,2015; Jonathon Adler, “North Dakota District Court Blocks Controversial ‘Waters of the United States’ Rule(updated),” Washington Post, August 28,2015. ActionOutcome States Sue AdministrationA total of 27 states sued the Administration to block the Waters of the U.S. They grouped themselves to file suit in various district courts. Results varied across the district courts, some staying the rule while others refused to block the rule. U.S. District Court FilingThe District Court for the District of North Dakota set a preliminary injunction against the Waters of the U.S. for the 13 states that had filed suit against the EPA on August 27, Sixth U.S. Circuit Court of Appeals Filing The Cincinnati based Court of Appeals determined that they are unsure if they have jurisdiction to evaluate the regulation but a stay on the rule will allow them to determine jurisdiction properly. Senate Joint Resolution 22Signaled Congressional disapproval of the definition of the Waters of the U.S. rule, but this action was vetoed by President Obama on January 20, Amendment to Senate Energy Appropriations Bill An amendment to the FY ’17 Appropriations bill would have blocked funding for the Army Corps to develop, adopt, implement, administer, or enforce the rule. It failed to pass