From Kate R. Bowers - the latest (7 October 2021) CRS report on you-know-what: What’s Next for WOTUS - Recent Litigation and Next Steps in Redefining “Waters of the United States”. This Legal Sidebar (LSB) present s distictly legal perspective and has embedded links that may not be present it the dowloaded version, so you maye to wish to read it by clicking on the title ablve
I like to think we will get WOTUS figured out in my lifetime (NOT!).
Download CRS_LSB_Next_Steps_WOTUS_7Oct2021
Introduction
On September 3, 2021, the Army Corps of Engineers (Corps) and the
Environmental Protection Agency (EPA) announced that they halted implementation of the Navigable Waters Protection Rule, which defined “waters of the United States” (WOTUS) for purposes of establishing the scope of Clean Water Act (CWA) jurisdiction. The announcement followed a federal district court decision on August 30 in Pasqua Yaqui Tribe v. EPA, in which the court remanded and vacated the rule. Although the agencies had requested that the court allow implementation of the rule while they developed a new definition of WOTUS through the rulemaking process, the court instead agreed with parties challenging the rule who argued that it should be vacated immediately. The court’s vacatur of the Trump-era Navigable Waters Protection Rule requires the Corps and EPA revert to an older regulatory definition while the Biden Administration undertakes its rulemaking process to redefine WOTUS.This Sidebar discusses recent developments in the litigation surrounding the Corps and EPA’s efforts to define WOTUS. A companion CRS Report provides more in-depth discussion of the actions taken by the Obama, Trump, and Biden Administrations to define WOTUS, along with related legislation and case law.
Overview of Agency Efforts to Define WOTUS
The CWA prohibits discharging certain pollutants into “the waters of the United States, including the territorial seas” without a permit. The statute does not define “waters of the United States,” however. Congress, the courts, stakeholders, and the Corps and EPA—the two agencies responsible for administering the CWA—have long debated how to interpret the term, and thus the scope of waters that are federally regulated.
Prior to 2015, regulations promulgated by the Corps in 1986 and EPA in 1988 were in effect. The Corps and EPA also issued guidance in 2003 and 2008 to clarify the scope of CWA. Several Supreme Court decisions, most notably Rapanos v. United States in 2006, prompted the agencies to consider changes that would clarify the scope of WOTUS.” In 2015, the Corps and EPA issued the Clean Water Rule, which redefined WOTUS in the agencies’ regulations for the first time since the 1980s. Under both the 2015 Clean Water Rule and the pre-2015 regulatory framework, the agencies’ jurisdictional analysis sorted waters into three categories: (1) waters and wetlands that are categorically WOTUS; (2) 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; and (3) waters and wetlands that are categorically excluded from WOTUS. Among other things, the 2015 Clean Water Rule also defined the regulatory term “tributaries” for the first time, and established numerical distance-based criteria for determining when waters and wetlands were jurisdictional by virtue of their adjacency to certain regulated waters.
The 2015 Clean Water Rule was quickly mired in litigation. At the time President Trump took office in 2017, the rule had been stayed by the U.S. Court of Appeals for the Sixth Circuit. After the Supreme Court held that the Sixth Circuit did not have jurisdiction to enter that order because challenges to the rule must be litigated in federal district courts, the Sixth Circuit lifted its stay and the rule became effective in states that were not subject to one of several preliminary injunctions issued at the district court level. By that point, however, the Trump Administration had already begun its efforts to repeal the 2015 Clean Water Rule and replace it with a new definition of WOTUS.
On February 28, 2017, President Trump issued an executive order (E.O. 13778) directing the Corps and EPA to review and rescind or revise the 2015 Clean Water Rule. The agencies then embarked on a two-step regulatory process. First, the agencies repealed the 2015 Clean Water Rule and recodified the pre- 2015 regulatory text. Then, on April 21, 2020, the agencies issued the Navigable Waters Protection Rule. Overall, the Navigable Waters Protection Rule narrowed the definition of WOTUS, and thus the scope of waters and wetlands under federal jurisdiction. Among other changes, the rule (1) eliminated the category of waters whose jurisdictional status would be determined on a case-by-case basis, and the classification of all waters as either categorically included or categorically excluded; (2) excluded ephemeral features (i.e., those that flow or pool only in direct response to precipitation), including ephemeral tributaries, and features that did not provide surface water flow in a “typical year” to jurisdictional waters; (3) more narrowly defined “tributaries” and “adjacent wetlands,” both of which continued to be considered jurisdictional; and (4) removed interstate waters as a separate category of jurisdictional waters.
Enjoy!
"When the student is ready the teacher will appear." - Buddhist/Tao Te Ching/Zen proverb
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