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Is The WOTUS Carousel Finally Stopping Post-Sackett?

On July 12, 2023, Shortly after the Supreme Court’s ruling in Sackett v. Environmental Protection Agency, EPA and the Department of the Army issued a letter advising the ranking member of the Senate’s Committee on Environment...more

Less Room to Swim in the “Waters of the United States"

“On three prior occasions, this Court has tried to clarify the meaning of ‘the waters of the United States.’ But the problem persists. When we last addressed the question 17 years ago, we were unable to agree on an opinion of...more

New Year, New WOTUS Rule

EPA and the US Army Corps of Engineers announced on Friday, December 30, 2022, the final, pre-publication version of a “Revised Definition of ‘Waters of the United States’ [“WOTUS”]” rule. This 2022 WOTUS Rule will become...more

Does State Enforcement Action Really Protect a Regulated Entity from Citizen Suit Liability? Fourth Circuit Decision Casts Doubt.

A frequently noted adage in cases involving environmental citizen suits is that such actions are meant to “supplement, rather than supplant” governmental enforcement action. The dissent in the recently filed Naturaland Trust...more

WOTUS Whack-a-Mole: What Definition Applies This Week?

You can be forgiven if you aren’t sure how jurisdictional waters are currently defined in the United States. Since 2015, the definition of Waters of the United States, or WOTUS, has changed more often than a college freshman...more

New Year, New Penalties from EPA

Since 1996, federal agencies have been required to review and adjust their statutory civil monetary penalties for inflation under the Federal Civil Penalties Inflation Adjustment Act. Initially, these adjustments were made...more

EPA Drafts Guidance on County of Maui’s “Functional Equivalent” Test

On Tuesday, December 8, 2020, the U.S. Environmental Protection Agency (EPA) issued a Draft Guidance Memorandum attempting to place the recent Supreme Court decision in County of Maui v. Hawaii Wildlife Fund “into context...more

Already? Conflicting Rulings on 2020 WOTUS Rule

The silence you are hearing is no one being surprised. The limits of the phrase “waters of the United States” within the Clean Water Act (CWA) have been the subject of conflicting, confusing, and often divergent case law...more

EPA Limits State Authority in New 401 Certification Final Rule

EPA issued its Clean Water Act Section 401 Certification Final Rule on June 1, 2020 in an effort to comply with the directives of Executive Order 13868 promoting efficient permitting and timely agency actions. Section 401...more

2020 WOTUS Rule Misses the Goldilocks Zone. But is it Too Hot or Too Cold?

Regulatory agencies frequently find themselves making decisions in the face of widely divergent viewpoints. Much like the heroine of the “Three Bears” nursery tale, these agencies often try to find a position that is “just...more

Supreme Court Rules Clean Water Act Protections Can Extend to Groundwater; Creates Conflict with New 2020 WOTUS Rule

On April 23, 2020, the United States Supreme Court ruled that the addition of pollutants to groundwater which travels a half mile to enter navigable waters is the functional equivalent of a direct discharge, and subject to...more

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