The New WOTUS Proposed Rule and the Myths of Clean Water Act Federalism

by Dave Owen | December 11, 2018

Originally published on Environmental Law Prof Blog.

This morning, the U.S. Army Corps of Engineers and EPA released a proposed new rule that would change the agencies' shared definition of "waters of the United States." That phrase defines the geographic scope of federal jurisdiction under the Clean Water Act. 

The proposed rule would narrow the scope of federal jurisdiction, primarily in two ways.  First, it would eliminate jurisdiction for "ephemeral" streams – that is, streams where water flows only during and shortly after precipitation events. Second, it would eliminate jurisdiction for wetlands that lack an intermittent or permanent surface connection to navigable-in-fact waterways and that are not directly adjacent to those waterways. In practice, this will mean removing protections for wetlands that are close to surface waterways and are connected to those surface waterways through groundwater flows.

In the rule itself, and in the rhetoric surrounding the rule, EPA, the Army Corps, and the rule's many political supporters have identified returning power to the states as a primary purpose of the rule.  The rule itself emphasizes the need for a "line between Federal and State waters," and much of the rhetoric likewise implies that where federal jurisdiction exists, state authority disappears. 

Those statements contain a little bit of truth and a lot of deception. In reality, federal jurisdiction does not eliminate state authority. Indeed, limiting federal jurisdiction will often limit states' roles.

Understanding why that is true requires ...

Implications of the Supreme Court's Clean Water Rule/WOTUS Ruling

by Dave Owen | January 22, 2018
Originally published on Environmental Law Prof Blog. Today, the United States Supreme Court decided National Association of Manufacturers v. Department of Defense, a case determining whether challenges to the "Clean Water Rule" or "Waters of the United States Rule" should be heard in federal district court or in the United States Court of Appeals for the Sixth Circuit. The answer, the Supreme Court unanimously held, is federal district court, and the Court remanded the case to the Sixth Circuit to ...

Repeal First, Explain Later: The Trump Administration and the Clean Water Rule

by Dave Owen | June 28, 2017
Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen. EPA and the Army Corps of Engineers just released a proposal to repeal the Clean Water Rule and to return to previous regulations. The Clean Water Rule (also known as the WOTUS Rule) would have clarified the scope of federal regulatory jurisdiction under the Clean Water Act. It was one of the Obama administration's signature environmental initiatives, and it was one of candidate and then President Trump's signature targets. So the ...

Whither WOTUS?

by Daniel Farber | May 24, 2017
President Trump ordered EPA and the Army Corps to review the Obama Administration’s Waters of the United States (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 view, either the agencies will have to dive deep into the scientific thicket in the hope of justifying a new ...

CPR's Buzbee to Set the Record Straight on WOTUS at Senate Hearing

by James Goodwin | May 24, 2016
This afternoon, the Fisheries, Water, and Wildlife Subcommittee of the Senate Environment and Public Works Committee will convene a hearing on a topic that is fast becoming the congressional conservative equivalent of talking about the weather: the Environmental Protection Agency's (EPA) Clean Water Rule.  With the provocative title of "Erosion of Exemptions and Expansion of Federal Control – Implementation of the Definition of Waters of the United States," the hearing is unlikely to provide a sober or thoughtful forum for ...

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