On Wednesday, EPA and the Army Corps of Engineers announced that they plan to revise the definition of “Waters of the United States”. Simultaneously, DOJ moved to remand the Navigable Waters Protection Rule, in a challenge to the Trump-era rule brought by the Conservation Law Foundation. Can you say “déjà vu all over again”?
This is such a target-rich environment that I almost don’t know where to begin – but I’ll try.… More
At the end of the December, the EPA Science Advisory Board posted the text of a letter that the SAB intends to send to Administrator Wheeler concerning the administration’s proposed revision to the WOTUS rule. 
The SAB’s conclusions were not ambiguous.
The SAB finds that the proposed revised definition of WOTUS decreases protection for our Nation’s waters and does not support the objective of restoring and maintaining “the chemical,… 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
When the Supreme Court decided that the district courts had jurisdiction over challenges to the Obama administration WOTUS rule, I described it as a victory of the “give me a break” doctrine of statutory interpretation over the “just plain nuts” theory. I also noted that the Supreme Court had the luxury of ignoring the chaos that would ensue.
Whatever one may think of the merits of the competing theories,… 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
In August, a judge in South Carolina issued a nationwide injunction against the “Suspension Rule,” which delayed the effective date of the 2015 Waters of the United States rule. Now, a judge in Washington state has gone even further. Judge John Coughenour has vacated the rule.
The core of the new decision is the same as that in South Carolina. … More
On Thursday, the Trump Administration’s “Suspension Rule,” which delayed implementation of the Obama Waters of the United States Rule for two years was struck down. Judge David Norton of the District of South Carolina issued a nationwide injunction against the rule.
It’s important to note that the case was not about the merits of the WOTUS rule. It was simply about the Trump administration’s failure to comply with the Administrative Procedure Act in promulgating the Suspension Rule.… 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
As I’ve previously discussed, whether a discharge to groundwater may be subject to Clean Water Act jurisdiction is currently in dispute. Now the 9th Circuit has weighed in, finding that point discharges to groundwater are subject to the Clean Water Act, so long as an ultimate discharge of pollutants to surface waters of the United States is “fairly traceable” to the discharge to groundwater. … More
On Monday, the Supreme Court ruled that challenges to the WOTUS Rule must be heard in the district courts. At a certain level, the decision was easy and obvious – as evidenced by the absence of any dissent. 
After all, the Clean Water Act does assign jurisdiction to the district courts of all cases under the Act other than in seven specifically identified categories,… More
On Monday, the 9th Circuit affirmed the conviction of a Joseph Robertson, Montana man who:
discharged dredged and fill material into the surrounding wetlands and an adjacent tributary, which flows to Cataract Creek. Cataract Creek is a tributary of the Boulder River, which in turn is a tributary of the Jefferson River—a traditionally navigable water of the United States.
This somewhat attenuated connection to a “traditionally navigable water” put the case in the crosshairs of those seeking to narrow the definition of “Waters of the United States.” Robertson appealed on two grounds relevant to this larger debate. … More
Earlier this week, EPA and the ACOE began implementing the Trump administration’s efforts to deconstruct the Obama rule defining “Waters of the United States” under the Clean Water Act. EPA and the ACOE submitted for Federal Register publication a proposed rule that would temporarily restore the WOTUS definition that existed prior to the promulgation of the Obama rule in 2015, while they go about drafting a narrower definition.… More
On Tuesday, President Trump issued another executive order on the environment, this time directing EPA to revisit the EPA rule defining Waters of the United States under the Clean Water Act. It’s a curious order, for a number of reasons.
First, Section 1 of the EO states as “Policy” that “minimizing regulatory uncertainty” is in the national interest. Well, the purpose of the WOTUS rule was pretty much to reduce the regulatory uncertainty surrounding the definition of WOTUS. … 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