Clean Water Act Jurisdiction

Critics Warn WOTUS Rule Lacks ‘Respect’ Under Limited Deference Standard

GOP states and industry groups are seeking to inject the Supreme Court’s recent precedent ending Chevron deference into their suit challenging the Biden administration’s “waters of the United States” (WOTUS) rule, charging that the measure is unlawful and should be granted neither “deference” nor “respect” under the narrower Skidmore standard. Judge James Brown of the U.S. District Court for the Southern District of Texas issued an Aug. 12 order granting state and industry plaintiffs’ Aug. 8 motion to...

Judges Remand Kentucky WOTUS Suit But Sidestep Standing Question

An appellate panel is vacating and remanding a lower court’s dismissal of Kentucky’s challenge against the Biden administration’s 2023 “waters of the United States” (WOTUS) rule, finding that the court failed to provide adequate notice of its concerns regarding the commonwealth’s standing, though the panel declined to address standing itself. The panel of the U.S. Court of Appeals for the 6th Circuit issued a July 29 per curiam opinion and order in the suit Commonwealth of Kentucky v. EPA, et...

Citing Recent Rulings, EPA Renews Calls For As-Applied WOTUS Suits

EPA is reiterating calls for a Texas federal court to dismiss GOP states’ and industry groups’ facial challenge to its amended “waters of the United States” (WOTUS) rule, citing recent rulings that found the agency “faithfully applies” the rule to argue that the plaintiffs have not met the high bar for such suits and urging they bring as-applied challenges. “Plaintiffs’ imagined scenarios concerning future applications of the Amended Regulations are wholly inadequate to sustain their facial challenges, where Plaintiffs must...

Judges Doubt Kentucky’s Bid For Standing In WOTUS Suit But Eye Remand

An appellate panel is expressing significant doubts about Kentucky’s bid to win standing to challenge EPA’s shelved 2023 “waters of the United States” (WOTUS) rule, charging that the commonwealth’s appeal of a lower court’s dismissal of its suit is a “waste of our time” given that the rule is no longer operative though they remain open to a narrow remand. During July 18 oral argument in the suit Commonwealth of Kentucky v. EPA, et al. , Judge Raymond M. Kethledge...

Plaintiff seeks limited appeal of preliminary WOTUS loss

A North Carolina landowner is seeking to appeal a federal court’s ruling rejecting his motion for a preliminary nationwide injunction against the Biden administration’s final “waters of the United States” (WOTUS) rule, which found that it “faithfully conforms” to the Supreme Court’s landmark Sackett decision. Plaintiff in the suit Robert White v. EPA, et al. filed a July 8 notice of appeal to the U.S. District Court for the Eastern District of North Carolina, notifying the court of...

GOP States Renew WOTUS Arguments Amid ‘Indistinguishability’ Doubts

Republican states are renewing prior arguments that EPA and the Army Corps of Engineers’ “waters of the United States” (WOTUS) definition omits the requirement that adjacent wetlands be “indistinguishable” from traditionally navigable waters after a judge ruled that the agencies “faithfully” applied the Supreme Court’s Sackett ruling. A coalition of 24 Republican states filed a June 25 combined reply in support of its motion for summary judgment and brief in opposition to defendants’ motion for summary judgment to the...

In Early Win For EPA, Judge Says WOTUS Rule ‘Faithfully’ Applies Sackett

In an early win for EPA’s defense of its redone rule defining “waters of the United States” (WOTUS), a federal judge has denied a property owner’s bid to quickly block the policy’s implementation, saying it “faithfully conforms” to the Supreme Court’s landmark Sackett decision on the key issue of defining “adjacent” wetlands. In a June 18 order in Robert White v. EPA, et al ., Judge Terrence W. Boyle, of the U.S. District Court for the Eastern District of...

States Plan Bipartisan Caucus In Push To Bolster Wetlands Protection Funds

SHEPHERDSTOWN, WV -- State officials are planning to create a new bipartisan congressional caucus to press lawmakers to bolster funding for their efforts to protect wetlands in the wake of the Sackett decision, including pushing for a new EPA grant program modeled on the National Estuary Program (NEP). Marla Stelk, executive director of the National Association of Wetland Managers (NAWM), announced at the group’s annual State, Tribal and Federal Coordination Meeting June 17 that it will be working to...

Downbeat After Sackett, Top CEQ Official Pushes State Wetlands Protections

SHEPERDSTOWN, WV -- The top White House environmental official is warning that the federal government is unable to “fully protect” wetlands in the wake of the Supreme Court’s Sackett ruling narrowing the Clean Water Act’s (CWA) jurisdiction unless states step up their efforts to better protect the waterbodies, though environmentalists say there are limits in how much states can do. “Even if we do everything we can to bolster clean water protections, it still will not be enough to...

Groups Urge Officials To Expand Wetlands Protections In Wake Of Sackett

On the heels of the first anniversary of the Sackett ruling, environmentalists are renewing calls for the Biden administration to evaluate a range of different authorities to prevent loss and mitigate harms to wetlands after the Supreme Court narrowed the reach of the Clean Water Act (CWA), pointing to limits in state gap-filling efforts, and the ultimate need for Congress to act. Jon Devine, director of federal water policy for Natural Resources Defense Council (NRDC), told Inside EPA...

CWA Defendant Claims EPA Is Ignoring Sackett’s ‘Adjacency’ Definition

An Idaho ranch says EPA is failing to apply the Supreme Court’s definition of “adjacent wetlands” established in its landmark Sackett v. EPA decision, as it seeks to dismiss an enforcement suit over discharges into what the agency maintains is a protected wetland, offering an early test of how courts will apply the precedent to individual cases. Ace Black Ranches LLP (ABR) of Bruneau, ID, filed an April 29 motion to dismiss the agency’s complaint, urging the U.S. District...

Colorado Bill Seeks To Fill Wetland Gaps Post-Sackett Amid Broader Push

Colorado lawmakers are poised to approve bipartisan legislation that seeks to create a first-time dredge-and-fill permit program and fill other gaps in the state’s water programs as a result of the Sackett ruling, setting a potential precedent for other states that may also be seeking to strengthen rules as a result of the high court’s decision. The Colorado Senate on May 6 approved HB24-1379 , which requires the water quality control commission in the state Department of Public Health...

EPA Urges Court To Deny Plaintiff’s Bid For Nationwide WOTUS Injunction

EPA is urging a federal district court to reject a North Carolina landowner’s effort to enjoin EPA and the Army Corps of Engineers from implementing and enforcing their final amended “waters of the United States” (WOTUS) rule nationwide, charging that the plaintiff does not meet the standard for an injunction, and that such an effort is an “impermissible collateral attack” on an ongoing enforcement case. EPA filed a May 7 motion opposing a motion for a preliminary injunction in the...

EPA Quietly Decides To Give JD Coordination Updates Amid WOTUS Concern

EPA has quietly decided to provide public updates on its coordination process with the Army Corps of Engineers regarding jurisdictional determinations (JD) for when waterbodies are considered “waters of the United States” (WOTUS) in the wake of the Supreme Court’s Sackett ruling, aiming to bolster transparency amid industry concerns. The new approach also appears aimed at providing guidance as the agencies implement two different regulatory regimes in states due to court stays of the Biden administration’s WOTUS definition. EPA...

White House Offers Suite Of Authorities As It Sets Wetland Protection Goal

The Biden administration has announced a new national goal to restore and reconnect 8 million acres of wetlands and 100,000 miles of streams and waters in the wake of the Supreme Court’s Sackett ruling, outlining a host of actions agencies are taking within their existing statutory authorities to increase wetlands protections. The White House April 23 announced its “America the Beautiful Freshwater Challenge” initiative , which sets a goal to reconnect and restore 8 million acres of wetlands by...

PLF Sues To Overturn Swampbuster In Wake Of High Court ‘Takings’ Decision

The free-market law firm Pacific Legal Foundation (PLF) is challenging the Agriculture Department’s (USDA) decades-old Swampbuster wetlands conservation program as a violation of the Constitution’s takings clause, just days after the Supreme Court expanded its test for allowing a taking to cover statutory as well as administrative actions. If successful, the suit could further narrow federal protections for wetlands in the wake of the Supreme Court’s ruling in Sackett v. EPA , which narrowed the reach of the Clean Water...

Environmentalists Charge States’ WOTUS Suit Seeks To Go Beyond Sackett

Environmentalists, who are intervening in support of EPA’s defense of its “waters of the United States” (WOTUS) rules, are urging a federal court to reject state and industry summary judgment motions, charging that the plaintiffs’ claims are “meritless” and only speculate on the revised rule’s application, and that the suit is aimed at going beyond what the high court already ruled in Sackett v. EPA . Bayou City Waterkeeper, represented by Earthjustice, filed an April 16 combined motion for summary...

Researchers Eye Private Governance To Fill Sackett’s Protection Gap

A group of law professors is proposing the use of private environmental governance (PEG) initiatives, such as corporate commitments and voluntary standards, to protect wetlands and fill in the gap following the Supreme Court’s Sackett ruling, which limited state and federal regulatory authority to protect the waterbodies. The professors published an April 8 paper titled “Filling the Sackett Gap: The Private Governance Option,” detailing how PEG initiatives can fill gaps in wetland protections and complement government measures, and...

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