Tag Archives: ACOE

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:

  1. It adopts Justice Scalia’s plurality opinion in Rapanos v.…
  2. More

Woe Is WOTUS, Redux

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

The WOTUS Rule and the Purpose of the Clean Water Act

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

WOTUS: Legal Issue or Scientific Issue?

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

WOTUS, SCHMOTUS. Can the Corps Reach a Reasoned Jurisdictional Determination In Less Than 12 Years?

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

The Army Corps Is Nicer Than I Am

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

Corps Jurisdictional Determinations Are Final Agency Action: Now What?

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” Wetlandsare 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

What Is a Water of the United States? EPA and the Corps Make It Easier To Know What They Think

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

The Sixth Circuit Stays the Waters of the United States Rule: Just a Plain Vanilla Preliminary Injunction — Not!

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, alice in wonderlandin so many ways, that I don’t even think I can count them.  Here are a few.

  • The Court stayed the case, even though, as the dissent pointed out, there is question whether it even has jurisdiction to hear the appeal.…
  • More

EPA Hubris, July 2015 Edition

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

What’s a Court to Do When An Agency Admits Error? Vacate? Remand?

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 SAB Enters the “Waters of the United States” Fray: Guess Which Side the Scientists Support

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” BM-NeedToKnow-WetlandBanking-GALunder 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