The jurisdiction of the Clean Water Act turns on the meaning of a simple—but vague—term: “waters of the United States” (WOTUS). Courts, EPA, the Army Corps of Engineers, and the regulated community have all struggled over how expansively WOTUS can be interpreted. This presentation briefly discusses the history of how courts and EPA have defined WOTUS, including recent efforts by the Trump administration to rescind and replace the 2015 Clean Water Rule. These regulatory developments, coupled with both ongoing and threatened litigation, will introduce uncertainty and risk for those seeking to build projects and to engage in other activities in what might be jurisdictional waters. This presentation will cover the recently-promulgated Navigable Waters Protection Rule, which seeks to create a new, narrowly drawn definition of WOTUS, as well as how likely challenges to the rule will affect the regulatory landscape over the next several years.
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