Earlier this month, in Lewis v. United States the 5th Circuit issued a decision interpreting the Supreme Court’s decision in Sackett v. EPA. The 5th Circuit decision is a model of clarity and demonstrates what I’ll call the good side of Sackett. And clarity is definitely the right word here. One might say clarity is the holy grail that critics of EPA’s and the Corps’ efforts to interpret WOTUS have focused on.… More
Category Archives: WOTUS
Supreme Court Curtails Federal Wetlands Protections; Developers Still Must Consider State and Local Wetlands Laws
On May 25, 2023, the Supreme Court issued its long-awaited decision in Sackett v. Environmental Protection Agency, which significantly narrowed the Clean Water Act’s (“CWA”) test for determining whether wetlands are protected “waters of the United States” and the federal permitting requirements for development projects in covered wetlands areas.
The Court’s Ruling
The Supreme Court’s ruling has two basic parts:
- It adopts Justice Scalia’s plurality opinion in Rapanos v.…
EPA and the Corps Promulgate a “Durable” WOTUS Rule — Proving Only That There Is a Difference Between Hope and Expectation
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
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
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
The Sacketts Got Their Day in Court on the Merits; Another Lesson in Being Careful What You Wish For
Last week, in what may or may not be the last round in the ongoing efforts by Michael and Chantell Sackett to build a house on wetlands in Idaho, the 9th Circuit Court of Appeals found that:
EPA reasonably determined that the Sacketts’ property contains wetlands that share a significant nexus with Priest Lake, such that the lot was regulable under the CWA and the relevant regulations.… More