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May 5, 2016 by Dave Owen

The Surprising Evolution of Federal Stream Protections

Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen.

Right now, the United States' second-most-heated environmental controversy—behind only the Clean Power Plan—involves the Clean Water Rule, which seeks to clarify the scope of federal regulatory jurisdiction under the Clean Water Act. According to its many opponents, the rule is one big power grab. EPA and the Army Corps of Engineers, according to the standard rhetoric, are unfurling their regulatory tentacles across the landscape like some monstrous kraken, with devastating consequences for key sectors of the American economy.

In a forthcoming article, I argue that this rhetoric is false, and that it also misses a much more interesting true story. The Clean Water Rule is indeed part of a major regulatory transformation, which has extended and transformed regulatory protections for small streams. But the Clean Water Rule is just a small part of that transformation. Some of the most important events occurred earlier, in places and under presidential administrations that are not typically seen as founts of environmental progress. A simple story of regulatory overreach (or, conversely, regulatory capture) also explains very little of what has happened. Streams have more protection now than they did …

March 7, 2016 by Dave Owen
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Since Justice Scalia’s passing, the blogosphere has been abuzz with speculation about how the changed composition of the Court will affect environmental law. This post adds a little more to that speculation. My focus is not the Clean Power Plan litigation, which has (justifiably) gathered much of the attention, but instead the litigation over the joint EPA-Army Corps Clean Water Rule. And my prediction is a bit different from most predictions about the Clean Power Plan. Here, I predict, that changes in court composition probably won’t matter much.

Before I explain the reasons for that prediction, a little context may be helpful. The Clean Water Rule (also sometimes referred to as the Waters of the United States Rule (or just WOTUS)) determines the geographic scope of federal jurisdiction under the Clean Water Act. The Army Corps and EPA jointly released the rule last summer. Its …

Oct. 14, 2015 by Dave Owen
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Last week, the United States Court of Appeals for the Sixth Circuit issued a nationwide stay of implementation of the new Army Corps/EPA Clean Water Rule.  This sounds like a very big deal, and the state plaintiffs who won the stay will no doubt describe this as a major victory.  Those proclamations will conceal, however, a few layers of complexity and irony.

The legal basis for the ruling is an administrative law principle known as the logical outgrowth rule.  Under this principle, a final rule can be different from a proposed rule, but it still must be a logical outgrowth of that proposed rule; it cannot be something completely new.  That principle flows from the basic Administrative Procedure Act requirement for notice and an opportunity to comment.  Neither is present when an agency’s final rule does something no one reasonably could have expected, and upon …

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Whither WOTUS?