Clean Water Act Jurisdiction

Civil Works Chief Eyes Novel Wetland Protection Measures Post-Sackett

Michael Connor, assistant secretary of the Army for Civil Works, says the Biden administration is thinking “differently” about new authorities it might be able to use to bolster wetland protections in the wake of the Supreme Court’s Sackett decision, saying EPA and the Army Corps of Engineers are evaluating options to do so. “We’ve got to think a little bit more differently post- Sackett ,” Connor told the University of Iowa’s Hubbell Environmental Law Initiative April 5, because regardless...

EPA Defends ‘Adjacent’ Wetlands Definition As Critics Attack WOTUS Rule

EPA is defending its controversial rule amending the definition of “waters of the United States” (WOTUS) to conform with the Supreme Court’s Sackett decision from state and industry challenges, arguing in part that its challenged omission of “indistinguishability” as a jurisdictional requirement for “adjacent” wetlands misreads the high court’s decision. “ Sackett does not require the party asserting [Clean Water Act (CWA)] jurisdiction to prove that wetlands and covered waters are visually identical; indeed, as Sackett itself...

CWA Permitting Faces Uncertainty Post-Sackett, Industry Attorneys Say

An industry law firm is warning clients that the Biden administration is giving few indications of how it intends to change Clean Water Act (CWA) permit and mitigation practices based on the Supreme Court’s Sackett v. EPA ruling, or define key terms and is unlikely to publish new guidance ahead of the November elections. During a March 26 webinar hosted by the firm Nossaman LLP, three attorneys delivered a presentation saying EPA has provided “no new specific guidance/policies further...

Corps Pushes Compensatory Wetlands Mitigation To Offset Sackett’s Effects

The U.S. Army Corps of Engineers is announcing plans to use compensatory mitigation projects as a way to potentially offset losses of aquatic resources and wetlands due to the Supreme Court’s Sackett decision, a move which lawyers say is sure to prove highly controversial and is likely to face a legal challenge. Michael Connor, assistant secretary of the Army for Civil Works, issued a March 22 memo to Lieutenant General Scott A. Spellmon, the Corps’ commanding general, regarding Civil...

Industry FOIA Request Seeks ‘Internal’ EPA Guidance Amid WOTUS Concerns

A coalition of industry groups has filed a Freedom of Information Act (FOIA) request seeking copies of documents relating to the U.S. Army Corps of Engineers and EPA’s implementation of their amended final “waters of the United States” (WOTUS) rule, amid concerns that internal guidance implements the rule contrary to the Supreme Court’s direction in Sackett . The Waters Advocacy Coalition (WAC), a broad coalition representing a range of industrial and municipal dischargers, sent a March 12 FOIA request to...

Amid Uncertainty, Some Use AI To Assess Wetlands Coverage After Sackett

Despite recent EPA guidance, continuing uncertainty over the reach of the Clean Water Act (CWA) following the Supreme Court’s Sackett ruling has academics and state groups turning to artificial intelligence (AI) and machine learning algorithms to assess potential losses of federal wetlands protections. The National Association of Wetland Managers (NAWM) held a March 19 webinar titled “Predicting and Mapping the effects of the Sackett Decision,” as part of its broader Wetland Mapping Consortium webinar series, where speakers presented...

California Lawmakers Eye Budget Hike To Counter Sackett’s WOTUS Limits

California lawmakers are weighing conflicting advice about whether to support Gov. Gavin Newsom’s (D) fiscal year 2024-25 budget proposal to increase spending by state and regional water boards to administer permitting activities for wetlands and other “waters of the state,” after the Supreme Court’s Sackett ruling narrowed federal Clean Water Act (CWA) protections. The Sackett ruling leaves “many state waters unprotected at the federal level and reliant on state regulation,” a March 6 Assembly budget subcommittee staff report...

Kentucky Scrambles To Preserve Standing In 6th Circuit WOTUS Challenge

Kentucky officials are urging a federal appeals court to grant them standing to challenge the Biden administration’s 2023 “waters of the United States” (WOTUS) rule, fearing that without such a ruling, the commonwealth will not be able to challenge the administration’s subsequently narrowed rule that seeks to align the WOTUS definition with the high court’s Sackett ruling. In a March 18 brief in Commonwealth of Kentucky v. EPA, et al. , officials urged the U.S. Court of Appeals for...

EPA Faces Novel As-Applied Citizen Suit To Block WOTUS Rule Nationwide

EPA and the Army Corps of Engineers are facing a novel citizen suit from a North Carolina landowner that seeks to enjoin the agencies’ from implementing their final amended “waters of the United States” (WOTUS) rule nationwide, a move that if successful would bar the rule’s enforcement in the 27 states where courts have not yet blocked it. Robert White, who is represented by the Pacific Legal Foundation (PLF), the free-market group that led the Supreme Court fight that narrowed...

GOP States Push Constitutional Claims In Legal Attack On Amended WOTUS

A coalition of 24 Republican state attorneys general (AG) is stepping up its constitutional claims over the Biden administration’s final “waters of the United States” (WOTUS) rule, warning that it is plagued by violations of Due Process, the Commerce Clause, the major-questions doctrine, and the Tenth Amendment. The GOP states, led by West Virginia AG Patrick Morrisey, filed a Feb. 26 motion for summary judgment in the U.S. District Court for the District of North Dakota, charging that EPA and...

States, Industry Launch Broad Legal Attack On EPA’s Amended WOTUS Rule

Texas, Idaho, and a coalition of industry plaintiffs are urging a federal district court to quickly vacate the Biden administration’s amended “waters of the United States” (WOTUS) rule, charging it “runs afoul” of the Supreme Court’s Sackett ruling and that “every jurisdictional category” exceeds the Clean Water Act and is unconstitutionally vague. The states filed a Feb. 2 motion for summary judgment urging the U.S. District Court for the Southern District of Texas to vacate the rule, arguing that...

CBD Urges EPA To Expand Maui Guide, Seeking Broader WOTUS Coverage

Environmentalists are urging EPA to expand its guidance for implementing the Supreme Court’s test for determining when groundwater discharges are subject to Clean Water Act (CWA) permits, urging the agency to use a concurring opinion from the high court’s Sackett ruling to take a broader view of how waters and wetlands that are no longer jurisdictional may still be regulated. The Center for Biological Diversity (CBD) in Dec. 22 comments also urged the agency to move away from a...

5th Circuit Strictly Interprets Sackett Directive Over WOTUS Definition

A federal appellate court has dismissed federal regulators’ efforts to subject a Louisiana landowners’ property to Clean Water Act (CWA) permit requirements, in a ruling that some say provides a glimpse into how courts may strictly apply the high court’s Sackett decision that narrowly defined which waters are subject to regulation. Ending 10-year dispute over whether the property contained jurisdictional “waters of the United States” (WOTUS), Judge Edith Jones, a Reagan appointee, wrote a Dec. 18 opinion finding that...

Kentucky Asks Appellate Court To Vacate Dismissal Of WOTUS Challenge

Kentucky, the only state plaintiff blocked from challenging the Biden administration’s rule revising the definition of “waters of the United States” (WOTUS), is urging an appellate court to vacate a lower court’s dismissal of the state’s challenge so it can amend its complaint and target the newer definition that aligns with the high court’s ruling in Sackett . In a Dec. 18 merits brief in Commonwealth of Kentucky v. EPA, et al. , the commonwealth asked the U.S. Court of...

EPA Readies Procedural Defenses Against Industry WOTUS Challengers

EPA is signaling plans to raise procedural hurdles against industry groups challenging its amended “waters of the United States” (WOTUS) rule, charging that some have failed to establish their standing to sue while at least one of the plaintiffs’ claims are not yet ripe for judicial review. EPA signaled its plans in a pair of Dec. 13 answers to industry’s amended complaints in two separate district court suits challenging its amended WOTUS rule, signaling the defenses it plans to bring...

Plaintiffs Detail Host Of Claims In Push For Courts To Vacate Revised WOTUS

Republican-led states and industry groups are urging federal courts to vacate the Biden administration’s rule aligning its definition of “waters of the United States” (WOTUS) with the Supreme Court’s Sackett ruling, raising concerns over the rule’s procedure, its alleged failure to adhere to the scope of the ruling and the Clean Water Act (CWA), as well as constitutional concerns. The arguments are spelled out in Nov. 13 amended complaints that Texas and Idaho filed to the U.S. District Court...

House Republicans Seek To Clarify WOTUS Enforcement Post-Sackett

Members of the Congressional Western Caucus, a group of House Republicans, are urging EPA and the Army Corps of Engineers to clarify how the agencies will implement and enforce their amended “waters of the United States” (WOTUS) definition to comply with the Supreme Court’s Sackett ruling. The caucus sent a Nov. 14 letter , signed by Chairman Dan Newhouse (R-WA) and an additional 71 members, to EPA Administrator Michael Regan and Assistant Secretary for the Army for Civil Works...

Agencies’ Post-Sackett JD Procedures Spark Debate Over EPA’s Role

EPA and the Army Corps of Engineers have quietly issued procedures for coordinating on jurisdictional determinations (JDs) in the wake of the Supreme Court’s Sackett v. EPA ruling, sparking a debate on whether the new memos increase EPA’s relative power in the process compared to what was previously in place. EPA on Sept. 27 quietly issued two joint memos to the field on how EPA, the Corps, and the Department of the Army will coordinate on JDs. One memo...

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