Navigable Waters Protection Rule

The proposed definition would significantly extend the regulatory scope of the Clean Water Act.

By Michael G. Romey, Cody M. Kermanian, and Lucas I. Quass

On December 7, 2021, the US Environmental Protection Agency and the US Army Corps of Engineers (collectively, the Agencies) published a proposed rule (the Proposed Rule) to revise the definition of “waters of the United States” (WOTUS), a critical term that determines the Clean Water Act’s (CWA’s) scope and application. The proposed changes, published in the Federal Register, could signal a return to the more inclusive pre-2017 WOTUS interpretation, which could broaden the CWA’s application. Comments on the Proposed Rule are due on February 7, 2022.

New definition of “waters of the United States” takes effect June 22, 2020 everywhere except Colorado under split decisions.

By Janice M. Schneider and Peter R. Viola

In the closely watched battle over the scope of the Clean Water Act (CWA), a federal court in California has denied a motion brought by a coalition of states to stay the Trump Administration’s rule narrowing the law’s reach. However, the federal court in Colorado has enjoined the rule in that state, and litigation in these and other courts will continue — including an anticipated appeal of the California decision to the Ninth Circuit Court of Appeals.