Environmental Permitting, Regulatory Developments

WOTUS, WOTUS Everywhere, and Not a Drop in the Senate!

After failing the day before to collect the votes needed to approve a bill to force the EPA and Army Corps of Engineers (EPA/Corps) to rewrite their embattled June 29, 2015, Clean Water Rule (also called WOTUS for waters of the United States), Senate opponents of the rule gained the simple majority needed to pass a joint resolution. In contrast to the bill, a detailed document with specific instruction on how a replacement rule must be written, the entirety of the joint resolution is six lines stating that Congress disapproves of the EPA/Corps rule and “such rule shall have no force or effect.”

The WOTUS rule is currently in legal abeyance. On October 9, 2015, the U.S. Court of Appeals for the 6th Circuit stayed the rule pending further action by the court. The agencies subsequently announced that they would adhere to the regulatory definitions of WOTUS that were in effect before August 27, 2015. Those definitions were implemented by application of relevant case law, applicable policy, and the best science and technical data on a case-by-case basis in determining which waters are protected by the CWA

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