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WOTUS: A Never-Ending Story

On April 21, 2020, the US Environmental Protection Agency and the Army Corps of Engineers published in the Federal Register the Navigable Waters Protection Rule (NWPR) in an effort to redefine “waters of the United States” (WOTUS). Unless blocked by courts, the rule will take effect on June 22, 2020. 

The final rule, which was first released on January 23, 2020, is intended to replace the Obama administration’s controversial 2015 WOTUS rule, which many argue expanded federal jurisdiction to include a wide range of waters that should be beyond the scope of the Clean Water Act (CWA). The new rule purports to scale back what has been interpreted as the prior administration’s overreach and departs from Justice Kennedy’s “significant nexus” standard, as articulated in Rapanos v. United States. In so doing, the new rule, among other things, excludes certain types of waters from federal jurisdiction, such as ephemeral streams. “Adjacent wetlands,” on the other hand, are subject to CWA requirements under the NWPR as long as they are shown to have a meaningful connection to other jurisdictional waters by directly abutting or having regular surface water communication with such waters.

Predictably, after the final rule was published, several environmental groups as well as 17 states have filed lawsuits challenging the new NWPR, arguing that the new rule goes too far in restricting federal jurisdiction under the CWA. Meanwhile, the New Mexico Cattle Growers’ Association filed suit arguing that federal jurisdiction over the nation’s waters should be further narrowed.

As with previous WOTUS rules, we expect litigation to persist and for the definition of WOTUS to continue to be the subject of controversy. Generally, if the new rule is blocked by the courts in some or all of the country, pre-2015 agency guidance will apply, likely resurrecting Justice Kennedy’s significant-nexus test from Rapanos v. United States in those areas.

© 2020 Jones Walker LLPNational Law Review, Volume X, Number 153

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About this Author

Elise Henry, Lawyer, Jones Walker Law Firm, Environmental Compliance
Associate

Elise Henry is an associate in the firm's Business & Commercial Litigation Practice Group and practices in the firm's New Orleans office. Ms. Henry focuses her practice on environmental regulatory compliance and litigation.

Before joining Jones Walker, Ms. Henry has represented title insurance companies, insured lenders, contractors, developers, condominium associations, and individuals in litigation related to title insurance claims and curative actions, construction, landlord/tenant disputes, evictions, purchase agreements, and other real...

504-582-8165
Stanley Millan, Litigation Attorney, Jones Walker Law Firm
Special Counsel

Stan Millan is a member of the firm's Business & Commercial Litigation Practice Group, and he divides his practice between transactional and litigation work. His practice consists of environmental law, administrative law, green and government contracts law. He is LEED® AP-certified by the U.S. Green Building Council. Mr. Millan's practice extends to the entire panoply of air, water, and waste regulation, including compliance counseling and defense before the U.S. Environmental Protection Agency (EPA), the Louisiana Department of Environmental Quality (LDEQ), and courts. His practice also includes endangered species and wetland regulation, dealing with the EPA, the U.S. Army Corps of Engineers, the LDEQ, the Louisiana Department of Natural Resources (LDNR), and the U.S. Fish and Wildlife Service. His government contracts work includes small business issues, bid protests, contract dispute claims, and negotiations of equitable adjustments.

504-582-8328