Here is a CRS InFocus (two-pager) report by Laura Gatz and Stephen P. Mulligan: 'Waters of the United States (WOTUS) - Repealing and Revising the 2015 Clean Water Rule'.
Download CRS_InFocus_WOTUS_CW_Rule_23October2019
Background: What is WOTUS?
Congress passed the Clean Water Act (CWA) to restore andprotect the quality of the nation’s surface waters (33 U.S.C. §1251 et seq.). The statute protects “navigable waters,” which it defines as “the waters of the United States, including the territorial seas.” The CWA does not further define the term waters of the United States (WOTUS). Thus, the Army Corps of Engineers and U.S. Environmental Protection Agency (EPA) have defined WOTUS in their regulations. However, Congress’s intent as to the meaning of WOTUS has been debated and litigated for more than four decades.WOTUS Regulations and Rapanos
In the 1980s, EPA and the Corps defined WOTUS to include, among other things, all waters and wetlands the use, degradation, or destruction of which could affect interstate or foreign commerce. While the Supreme Court never struck down this regulation, it held twice that the agencies exceeded their CWA authority in interpreting and applying the regulation.The Supreme Court has disagreed on WOTUS’s scope. In a 2006 decision, Rapanos v. United States, a four-Justice plurality (written by Justice Scalia) argued that WOTUS encompasses “relatively permanent, standing or continuously flowing bodies of water,” such as streams, rivers, or lakes and wetlands that have a “continuoussurface connection” to waters subject to the CWA. JusticeKennedy, by contrast, wrote a concurring opinion arguing that WOTUS includes wetlands that have a “significant nexus” to traditionally navigable waters. Justice Kennedy elaborated that a significant nexus exists when the wetland, either alone or in connection with similarly situated properties, significantly impacts the chemical, physical, and biological integrity of a traditionally navigable water.
After Rapanos, EPA and the Corps issued interpretive guidance in 2008 in which they organized the CWA jurisdictional analysis into three categories:
Waters and wetlands that are categorically WOTUS, including traditionally navigable waters, relatively permanent tributaries, wetlands adjacent to traditionally navigable waters, and wetlands that abut tributaries to such waters.
Waters and wetlands that may be deemed WOTUS on a case-by-case basis upon a finding of a“significant nexus” with traditionally navigable waters. This category includes wetlands adjacent to certain tributaries as well as tributaries that are notrelatively permanent—defined in the guidance as intermittent streams that lack a continuous flow at least seasonally and ephemeral streams that flow only in response to precipitation.
Waters and wetlands that are categorically excluded from WOTUS, including swales and certain ditches.
The 2008 guidance elaborated on the criteria for wetlands to be considered adjacent to traditionally navigable waters and therefore fall into category one. Under the 2008 guidance, adjacency is established by (1) an unbroken surface or shallow subsurface connection to regulated waters; (2) physical separation from regulated waters by man-made dikes or barriers, natural river berms, beach dunes, and similar features; or (3) proximity to regulated waters that supports an inference of ecological interconnection.
EPA and the Corps acknowledged that their written guidance did not provide the public or agency staff with the information needed to ensure timely, predictable, and consistent jurisdictional determinations. The agencies further acknowledged that case-by-case significant nexus determinations were resource and time-intensive. Diverse stakeholders—including Members of Congress, states, the regulated community, and non-governmental organizations—requested a formal rulemaking to revise the existing rules.
Read the rest!
Here is a related story in @bloomberglaw: Litigation Deluge Expected After Waters Rule Repeal (2) bit.ly/2W9Trh0
Enjoy!
"To study the past is to unlock the prison of the present." - Jill Lepore (via @jfleck)
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