Over the last month, there have been several developments in the litigation over implementation of the key Clean Water Act (“CWA”) term “waters of the United States” (“WOTUS”). The definition of WOTUS is critical for implementing the CWA because only those waters that fall under the WOTUS definition will be regulated under the CWA. The Environmental Protection Agency (“EPA”) is responsible for issuing regulations to define the key term, which has proven to be a challenge.

Since 2015, there have been three different rulemakings to introduce new WOTUS definitions. The latest WOTUS definition, which went into effect on March 20, has been the subject of three legal challenges. Although one of the lawsuits was dismissed, the other two lawsuits have resulted in injunctions preventing the 2023 WOTUS rule from taking effect in 26 states and a temporary stay of the rule in a 27th state.

To read the complete analysis published yesterday in The Feed, please click here.