The U.S. Army Corps of Engineers (Corps) and U.S. Environmental Protection Agency (EPA) on Aug. 29, 2023, issued a final rulemaking revising the definition of "Waters of the United States" (WOTUS) within Corps1 and EPA2...more
On May 25, 2023, the U.S. Supreme Court reversed the Ninth Circuit’s decision in the Sackett v. EPA case in favor of the Environmental Protection Agency (“EPA”) and instead held that the Clean Water Act (“CWA”) only protects...more
It's that song in your head that you can't stop hearing. On March 20, 2023, the 500-plus page final Revised Definition of "Waters of the United States" ("2023 WOTUS Rule" or "Rule") went into effect, published jointly by...more
Section 404 of the Clean Water Act of 1972, 33 U.S.C. Section 1251 et seq., prohibits the discharge of dredged or fill material into “navigable waters” without a permit. Section 502(7) of that act defines “navigable waters”...more
In a 50-year game of ping-pong, the Biden administration marked the end of 2022 by taking its turn revising the definition of “waters of the United States,” or “WOTUS” for short. This term determines where Clean Water Act...more
On December 30, 2022, the U.S. Environmental Protection Agency (EPA), and U.S. Army Corps of Engineers (Corps) announced a joint final rule for the revised definition of the “waters of the United States” (WOTUS). The new rule...more
On December 30, 2022, EPA and the U.S. Army Corps of Engineers (Corps) (together the Agencies) issued a prepublication version of the latest definition of Waters of the United States (WOTUS). It will become effective when...more
The Supreme Court kicks off its 2022 term on October 3 with the highly anticipated argument in Sackett v EPA. Petitioners are seeking another blockbuster ruling a la West Virginia v EPA that hamstrung EPA’s authority to...more
EPA has announced that the second part of its eighth attempt to define the reach of the Clean Water Act will be delayed until November of 2023. At the same time EPA announced it will move forward with finalizing part one of...more
SCOTUS Shadow Docket Reinstates Trump-Era Clean Water Act Rule - In a 5-4 decision, the United States Supreme Court reinstated a Trump-era environmental regulation related to the States’ enforcement rights under the federal...more
Will private landowners’ property fall under more regulation as part of the definition of “waters of the United States?” Will land near, but that does not front, a large body of water be subject to the wetlands regulations of...more
On February 24, 2022, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) announced the list of organizers selected for regional roundtables concerning the agencies’ rulemaking proceeding...more
Region 4 of the United States Environmental Protection Agency (“EPA”) sent a January 31st letter to the Florida Department of Environmental Protection (“FDEP”) responding to its correspondence regarding the Clean Water Act...more
On Monday, January 24, 2022, the U.S. Supreme Court granted certiorari in the case of Sackett v. U.S. Environmental Protection Agency, 19-35469 to decide “[w]hether the Ninth Circuit set forth the proper test for determining...more
One hundred and seventeen Democratic members of the United States House of Representatives sent a February 7th letter to the Administrator of the United States Environmental Protection Agency (“EPA”) and Assistant Secretary...more
Twenty-two agricultural organizations submitted February 7th comments to the United States Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) addressing the federal agencies’ joint proposed rule to...more
Since 2015, jurisdiction under the Clean Water Act (CWA or the Act) has been in a near constant state of flux, creating a challenging regulatory landscape for project developers and the regulatory community. The last few...more
In a move that could have wide-ranging implications for developers of real estate, including renewable energy projects, throughout the United States, the U.S. Army Corps of Engineers (the “Corps”) recently announced that it...more
On January 5, 2022, the United States Army Corps of Engineers (USACE) announced that Approved Jurisdictional Determinations (AJDs) issued before August 30, 2021, are no longer valid for new permit decisions. USACE uses AJDs...more
On December 7, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (the Corps) took their latest stab at clarifying the jurisdiction of the Clean Water Act (CWA), proposing (another) new definition of...more
On November 18, 2021, The Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) announced the availability of a pre-publication version of a proposed rule (Proposed Rule) to amend the definition of Waters...more
On November 18, 2021, the U.S. Environmental Protection Agency (EPA) and the Department of the Army announced a proposed rule to revise the definition of Waters of the United States (WOTUS). According to the agencies, the...more
The United States Environmental Protection Agency and the United States Corps of Engineers (collectively “EPA”) announced on November 19th a revised definition of waters of the United States (“WOTUS”). The agencies are...more
We interrupt our usual scrutiny of the courts to focus (mostly) on the important developments in notices and rulemaking issued by and concerning federal regulatory agencies and departments in the past several weeks....more
The federal Clean Water Act created federal jurisdiction over “navigable waters” defined as “waters of the United States” (WOTUS). Since becoming law in 1972, debate over what is, and is not, WOTUS has been robust....more