Presented on July 29, 2021 by Norman Semanko - Parsons Behle & Latimer

1. RED PADDLE-BLUE PADDLE:
WOTUS PING PONG
Norman M. Semanko
Attorney at Law
(208) 863-7921
nsemanko@parsonsbehle.com
parsonsbehle.com
NWRA 2021 Western Water Table Talk
Unraveling the Regulatory Environment

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 Established federal jurisdiction over “navigable
waters”
 “Navigable waters” defined as “waters of the
United States” (WOTUS)
 Basis for permitting scheme and other programs
 EPA and Army Corps of Engineers have
discretion to define WOTUS through rulemaking
The Clean Water Act (1972)

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Solid Waste Agency of Northern Cook County
(SWANCC), 531 U.S. 159 (2001)
 Corps exceeded its statutory authority by
regulating non-navigable, isolated waters based
solely on use as habitat for migratory birds
Rapanos v. United States, 547 U.S. 715 (2006)
 Struck down asserted federal jurisdiction over
isolated wetlands
 No majority opinion: 4-1-4 decision
Key rulings over past 20 years

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 Plurality (Scalia): WOTUS includes
“relatively permanent, standing or
continuously flowing bodies of water”
 Concurring (Kennedy): WOTUS includes
those wetlands that “possess a significant
nexus” to waters that are navigable in fact
 Concurring (C.J. Roberts): lamented the
agencies’ failure to conduct rulemaking
Rapanos opinions

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Bush: 2003/2008 Guidance

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PING: 2015 Obama Clean Water
Rule

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 Increased asserted jurisdiction, bucking
the trend in SWANCC and Rapanos
 Resulted in a proliferation of litigation,
staying the rule in most - not all - states
 Supreme Court clarified that challenges
belong in federal district courts, not courts
of appeal. NAM v. Corps (2018)
Clean Water Rule (2015)

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PONG: 2020 Trump Navigable
Waters Protection Rule

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 Executive Order to review 2015 Rule
 Two-step process: Repeal and replace
 Fashioned around Justice Scalia’s plurality
decision in Rapanos
 Significantly reduced jurisdiction, as
compared to the 2015 Rule
 Legal challenges failed to stay 2020 Rule
Navigable Waters Protection
Rule (2020)

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PING? Biden Administration

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Waters of the United States | US EPA (epa.gov/wotus)
 Executive Order requiring review of 2020 Rule
 Voluntary remand of 2020 Rule: (1) restore pre-
2015 protections; (2) establish durable definition
 Environmentalist requests to vacate rule denied
 Unified Agenda: WOTUS on “long-term” action list
 Virtual public listening sessions later this summer
 Dedicated stakeholder conversations
 Regional roundtables in late fall or early winter
Biden Administration Response

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QUESTIONS?