On 8 September 2023, the United States Environmental Protection Agency (EPA) and the Army Corps of Engineers (the Corps) published a final rule revising the regulatory definition of “waters of the United States” (WOTUS) in response to the Supreme Court’s May 2023 decision in Sackett v. EPA. Consistent with Sackett, the rule eliminates the “significant nexus test” for all waters and clarifies that wetlands must have a continuous surface connection to WOTUS to qualify for federal Clean Water Act (CWA) jurisdiction. The rule was not circulated for public notice and comment and became effective immediately [...]

The decision might prove costly to the Biden Administration and others invested in a relatively broad definition of WOTUS. This week the Ninth Circuit issued yet another Clean Water Act ruling in what is now the 13th year of the Sackett v. EPA litigation, a case about the U.S. Environmental Protection Agency’s authority to regulate a 0.63-acre residential lot near Idaho’s Priest Lake that has already generated one important Supreme Court decision. After rejecting EPA’s arguments that its recent withdrawal of the compliance order at the heart of the matter mooted the case, the [...]

The Trump Administration’s Navigable Waters Protection Rule (“NWPR”) is on its way out. A long list of blue states and environmental groups have challenged the Trump-era rule across more than a dozen cases, and the Biden Administration has begun asking the courts to remand—but not vacate—the rule so it can repeal and replace it through rulemaking. One federal trial court has already granted the Administration’s request, and rulings from several others are expected soon. Meanwhile, the Administration recently announced a series of public meetings to take comments on its two-part, repeal-and-replace strategy that will [...]

A 17 December 2020 trial court order largely prohibits the California Water Resource Control Board (State Board) from applying new rules that greatly expand California’s regulatory control over wetlands and dredge and fill activities throughout the state. The effect of the ruling may be temporary, however. The rules, which took effect on 28 May 2020, were in large part an attempt to regulate waters not covered by the narrowed scope of the federal Clean Water Act under the Trump administration. The rules were overturned almost seven months later when the court in San Joaquin [...]