How Difficult Will It Be for the Trump Administration to Replace the Clean Water Rule?

The Administration is Poised to Act, But Legal Challenges, Procedural Hurdles, and Internal Conflict Are Likely to Make It Difficult

On Monday, I posted a quick summary of the Trump administration’s recent action to start rolling back the Clean Water Rule, a joint rule by the Environmental Protection Agency and U.S. Army Corps of Engineers that defines the range of waterways the Clean Water Act protects.   The proposed action the agencies announced last week, …


The EPA Sets in Motion its Plan to Rescind the Waters of the United States Rule

This Action is Just the First Step Towards Reducing Clean Water Act Protection for Many Waterways and Wetlands

With much fanfare, the Trump administration announced last Tuesday that it is proposing to rescind the Clean Water Rule, also known as the Waters of the United States (WOTUS) Rule.  This rule is intended to govern determinations of which waterbodies and wetlands are “waters of the United States,” protected under the Clean Water Act.  The …


Whither WOTUS?

Trump ordered agencies to reconsider Clean Water Act jurisdiction. Easier said than done.

President Trump ordered EPA and the Army Corps to review the Obama Administration’s WOTUS rule, which sets expansive bounds on federal jurisdiction over water bodies and wetlands. The agencies have sent the White House a proposal to rescind the WOTUS rule and revert to earlier rules until they can come up with a replacement. In my …


Justice Roberts Should Welcome EPA’s Proposed New Wetlands Rule

The Environmental Protection Agency today issued a proposed new rule that seeks to clarify exactly how far the federal government’s jurisdiction reaches in requiring permits for the dredging and filling of wetlands.  In doing so, President Obama’s EPA is responding directly to Chief Justice John Roberts’ lament in his concurring opinion in Rapanos v. United …


What’s holding up the Clean Water Act jurisdictional guidance?

Cross-posted on CPRBlog. People on both sides of the political spectrum agree that the boundaries of federal jurisdiction under the Clean Water Act are murky, to say the least. But efforts by EPA and the Corps of Engineers to clarify those boundaries have been tied up in the White House for more than a year, …


Clearing the Waters

Law Week (subscription only) reports that: Rep. James Oberstar (D-Minn.) introduced legislation April 21 that would amend the Clean Water Act to clarify and “reaffirm” U.S. jurisdiction over waters of the United States, including wetlands. The America’s Commitment to Clean Water Act (H.R. 5088) would remove the term “navigable waters of the United States” from …


The Unintended Consequences of Rapanos

In the Rapanos case, building on its previous ruling in SWANCC, the Supreme Court cut back on federal jurisdiction over water bodies.  The issue before it was the government’s power to control filling of isolated wetlands, and it seems clear that the Court was solely focused on what it considered an inappropriate expansion of federal …


Clean Water Restoration Act clears committee

The Senate Committee on Environment and Public Works has voted 12-7 to send the Clean Water Restoration Act, S 787, to the full chamber. The bill would reverse the limitations imposed on the scope of the Clean Water Act by the Supreme Court in Solid Waste Agency of Northern Cook County v. United States Army …


How do we decide what is a “Water of the United States”? Rapanos revisited

Ever since the U.S. Supreme Court issued its opinions in Rapanos v. United States in 2006, it has been unclear exactly how the U.S. is to go about evaluating which wetlands and tributaries of navigable waters are subject to federal jurisdiction under the Clean Water Act.  Until recently, the U.S. Army Corps of Engineers asserted federal …