Last week, EPA and the Army Corps finally published their long-awaited rule defining “Waters of the United States.” Will the WOTUS rule finally provide the clarity for which we have been waiting, allowing the rule to be as “durable” as the agencies claim, or will it instead be dead on arrival, made irrelevant by the upcoming Supreme Court decision in Sackett, which many observers expect will significantly narrow the scope of jurisdiction under the Clean Water Act? … More
Category Archives: Waters of the United States
Might the WOTUS Saga Drag On For a While Longer?
The Supreme Court heard oral argument today in the Sackett case, in which the Sacketts are hoping that SCOTUS will finally issue a clear decision narrowing the scope of jurisdiction under the Clean Water Act. I have stayed out of the SCOTUS prediction game because I find such speculation to be a waste of time. I generally agree with the position of Roy Kent on Ted Lasso. … More
What’s Up With the Supreme Court?
As everyone knows, the Supreme Court has teed up West Virginia v. EPA, which challenges EPA’s authority to regulate greenhouse gases, and Sackett v. EPA, which challenges EPA’s authority to define what constitutes a water of the United States. Betting money does not favor EPA in either case.
I don’t have any inside authority on what will happen and I don’t really have thoughts that haven’t been expressed by others,… More
EPA Proposes to Use Science to Identify Waters of the United States. I’m Shocked, Shocked.
Last week, EPA and the Army Corps proposed a new rule to define what constitutes “waters of the United States.” Déjà vu all over again.
Under the proposal, the agencies:
are exercising their discretionary authority to interpret “waters of the United States” to mean the waters defined by the longstanding 1986 regulations, with amendments to certain parts of those rules to reflect the agencies’ interpretation of the statutory limits on the scope of the “waters of the United States” and informed by Supreme Court case law.… More
The Trump WOTUS Rule Is Vacated; Now We Know What’s Next
Last week, I reported that Judge Rosemary Marquez had vacated the Trump administration’s Navigable Waters Protection Rule. I also asked “what’s next”? EPA and the Army Corps have now answered that question, at least for the short run. In a brief announcement on EPA’s web page, EPA stated that:
the agencies have halted implementation of the Navigable Waters Protection Rule and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice.… More
The Trump WOTUS Rule Is Vacated; What’s Next?
Yesterday, Judge Rosemary Marquez vacated the Navigable Waters Protection Rule, the misnomer also known as the Trump WOTUS rule. In response to this citizens’ suit challenging NWPR, the Biden EPA and Army Corps of Engineers moved to remand the rule to the agencies, since they had already announced an intent to revisit the definition of WOTUS. However, for reasons that I have never understood, the agencies sought remand without vacatur,… More