Sometimes, history repeats itself. Sometimes, that is not a good thing.
After the Obama WOTUS 
rule was promulgated in 2015, the challenges came fast and furious, and in multiple forums. The Supreme Court, as I put it, adopted the “give me a break” theory over the “just plain nuts” theory, and ruled that challenges to the rule had to be heard in district courts. … More
Last week, EPA and the Army Corps of Engineers promulgated the final rule repealing the 2015 rule defining the Waters of the United States. The repeal rule is 172 pages in its pre-publication version. The word “science” is used 18 times in those 172 pages. Almost all of them are used in quotes from the 2015 rule or characterizations of the intent of the 2015 rule.… More
A lot of proverbial ink has been spilled regarding the Trump administration’s proposal to amend the definition of “waters of the United States” under the Clean Water Act. 
The administration has focused on what it views as a more reasonable legal interpretation of the historical scope of the term. It has also emphasized returning authority to the states and providing more certainty to landowners.
Environmentalists have focused on the broader interpretation that has historically been given to the term and that the Scalia opinion in Rapanos did not command a majority of the Court.… More
Last week, EPA and the Army Corps issued a Supplemental Notice of Proposed Rulemaking in support of their efforts to get rid of the Obama WOTUS rule. 
It’s a shrewd but cynical document. It’s shrewd, because it fairly effectively shifts the focus from the scientific question to the legal question. Instead of asking what waters must be regulated to ensure that waters of the United States are protected,… More
The debate over the definition of “Waters of the United States” goes on and on. I tend to think that Kennedy’s “significant nexus” test was a reasonable approach to making sense of a vague statute. I also think that the Obama administration definitional rule was supported by good science.
What we sometimes lose track of in the ongoing debate is that the definition – whatever we choose – matters,… More
After the Supreme Court decided last spring that Army Corps of Engineers’ Jurisdictional Determinations are final agency action subject to judicial review, I advised the Corps to pick up its marbles and go home. The statute does not require the Corps to issue JDs. To me, if the Corps is going to subject itself to litigation every time it issues a JD, it might as well just stop. … More
In a decision that was not a surprise based on oral argument, the Supreme Court today ruled that Army Corps of Engineers Jurisdictional Determinations concerning “waters of the United States” 
are final agency action subject to judicial review under the APA. As we previously noted, this continues the Court’s emphasis on the practical consequences of Corps decisions. Indeed, Chief Justice Roberts noted that the Court’s decision:
Tracks the ‘pragmatic’ approach we have long taken to finality.… More
While the litigation over the WOTUS rule wends its tortuous way through the courts, EPA and the Corps have not been idle. Earlier this month, they jointly issued a memorandum on their plans for improving the permitting process. Among other measures, they have reemphasized their commitment to transparency, by making all jurisdictional determinations available on a single web site. The web site is now up and running and includes all JDs issued beginning in September.… More
Today, the Sixth Circuit Court of Appeals issued a nationwide stay against implementation of the “Waters of the United States” rule. The case is so weird, 
in so many ways, that I don’t even think I can count them. Here are a few.
Anyone who reads this blog must have seen the explosion of reports in the trade press that EPA ignored significant criticism from the Army Corps of Engineers in promulgating its Waters of the United States rule. I have not seen the memoranda, but, based on the press reports, it appears that EPA ignored criticism both that it was too stringent in some areas and that it was not sufficiently stringent in others. … More
In Black Warrior Riverkeeper v. ACOE, decided this week by the 11th Circuit Court of Appeals, the Court was faced with a quandary. “On the eve of oral argument”, in a case challenging The Army Corps of Engineers Nationwide Permit 21, which allows certain surface coal mining activities without an individual permit, the Army Corps of Engineers informed the Court that it had significantly underestimated the acreage that would be affected by NWP 21. … More
The Science Advisory Board has now provided its advice to EPA and the ACOE concerning their proposed rule clarifying the definition of “waters of the United States” 
under the Clean Water Act. In a brief letter that can only worry the National Farm Bureau and embolden those who thought that the EPA/ACOE proposal did not go far enough, the SAB concluded that:
the available science supports the conclusion that the types of water bodies identified as waters of the United States in the proposed rule exert strong influence on the physical,… More