March 01, 2018

Views from the Chair: A long and winding WOTUS road through the district courts is about to begin

John Milner

As I read the recent decision of the U.S. Supreme Court in National Association of Manufacturers v. Department of Defense, __ U.S. __, No. 16-299, 2018 WL 491526 (Jan. 22, 2018) (NAM), I was reminded of the Beatles’ song “The Long and Winding Road.” NAM arose out of the government’s most recent attempt to define “waters of the United States” for purposes of the Clean Water Act (CWA). This time, the challenge was to a final rulemaking by the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency (EPA). The rule was challenged in a number of district courts and courts of appeal, most notably the U.S. Court of Appeals for the Sixth Circuit.

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