October 30, 2020

Dueling Navigable Waters Protection Rule decisions leave uncertainty in their wake

David Y. Chung and Leland P. Frost

For nearly five decades, courts, regulators, and the public have expended countless hours and resources wrestling with the phrase: “‘navigable waters’ means the waters of the United States[.]” 33 U.S.C. § 1362(7). Following the enactment of the Federal Water Pollution Control Act Amendments of 1972—now commonly referred to as the Clean Water Act (CWA)—both the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (together, Agencies) have endeavored to interpret the term “waters of the United States” (WOTUS) through rulemaking, enforcement actions, and guidance documents. In the past five years alone, the Agencies overhauled the definition twice in the name of providing predictability and consistency: the 2015 “Clean Water Rule” and the 2020 “Navigable Waters Protection Rule” (NWPR). Unfortunately, these efforts triggered dozens of lawsuits in various courts and consequent regulatory patchworks.

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