In 2006, in U.S. v. Rapanos,1 the U.S. Supreme Court invalidated regulations promulgated by the Environmental Protection Agency (EPA) and the Army Corps of Engineers defining the jurisdictional reach of their permitting authority under the Clean Water Act, finding that the definition of “waters of the United States” (sometimes referred to as WOTUS) exceeded the scope of the language in the act. Since then, the EPA, the Army Corps, Congress and the courts have wrangled over the promulgation of a new regulatory definition. This article describes the current and still fluid status of the attempts at regulatory compliance in light of the holding in Rapanos.
Clean Water Act
Section 401(a) of the Clean Water Act, 33 U.S.C. §1311 (a) makes the “discharge of a pollutant” unlawful and subjects any person who does so to significant civil and even criminal penalties. See Clean Water Act, §309, 33 U.S.C. §1319. “The discharge of a pollutant” is broadly defined and, most significantly means, “any addition of any pollutant to navigable waters from any point source.”2 Clean Water Act §502 (12), 33 U.S.C. §1362(12). “Pollutant” is also broadly defined and includes sand, dredge spills, rock and other materials. 33 U.S.C. 1362(2).
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
