Breaking News: WOTUS Decisions & the Future of the Clean Water Act

August 28, 2018 12:00 pm — 1:30 pm
Webinar only

ELI Member Breaking News Webinar

The Clean Water Act (CWA) is one of the most crucial regulatory frameworks in the United States, but EPA’s jurisdiction in this landmark statute has been subject to a great deal of uncertainty. Attempts to clarify the scope of the CWA, most notably in Rapanos v. United States, have further muddled such definitions. In 2015, EPA published the Clean Water Rule to provide more regulatory certainty. The rule, known more commonly as the Waters of the United States (WOTUS) rule, generated numerous legal challenges from various agriculture and industry sectors and thirteen states. The U.S. Court of Appeals for the Sixth Circuit stayed the rule’s enforcement in 2016. In March 2017, the Trump administration announced that it would review and rescind or revise the rule. After a Supreme Court decision in January overturned the Sixth Circuit’s stay for lack of jurisdiction, EPA suspended the WOTUS rule in favor of a prior definition from 1982, and announced it would produce a new one later in 2018.

On August 16, 2018, Judge David Norton of the U.S. District Court for the District of South Carolina enjoined the suspension rule, thus re-instating WOTUS as the applicable legal standard in 26 states not already subject to two prior district court injunctions staying WOTUS. Judge Norton ruled that EPA failed to adequately solicit public comments as mandated by the Administrative Procedure Act, concluding that “when an agency refuses to consider comments on a rule’s substance and merits in issuing a suspension rule that reinstates an earlier regulation, the content restriction is ‘so severe in scope’ that…the opportunity for comment cannot be said to have been ‘a meaningful opportunity.’” Environmental groups have lauded the decision for the effect it will have on the health of Americans and watersheds, while many in agriculture and industry sectors remain concerned that the WOTUS rule makes the scope of the CWA overly burdensome. Both sides have also raised questions about the application of conflicting injunctions in different areas of the country, and how this will play out pending a final resolution.

This Breaking News webinar focused on WOTUS and the ramifications and implications of Judge Norton’s decision on the future of the Clean Water Act.

Jay Austin
, Senior Attorney; Editor-in-Chief, Environmental Law Reporter®, Environmental Law Institute, Moderator
John Cruden, Principal, Beveridge & Diamond PC and formerly Assistant Attorney General, Environment and Natural Resources Division, U.S. Department of Justice
Jon Devine, Director, Federal Water Policy, Water Division, Nature Program, Natural Resources Defense Council (NRDC)
Amy Emmert, Senior Policy Advisor, Upstream and Industry Operations, American Petroleum Institute
Blan Holman, Managing Attorney, Southern Environmental Law Center
Peter Tolsdorf, Vice President, Litigation, and Deputy General Counsel, National Association of Manufacturers
Thomas Ward, Vice President, Legal Advocacy, National Association of Home Builders

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