The Volokh Conspiracy
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A federal district court in South Carolina has agreed with the Biden Administration's request to remand the Trump Administration's regulation defining the scope of "waters of the United States" (WOTUS) under the Clean Water Act to the Environmental Protection Agency. The order did not vacate the Trump WOTUS rule, however, so the regulation will remain in place while the Biden Administration works on a replacement.
The precise scope of the federal government's regulatory jurisdiction under the Clean Water Act has been the source of controversy for over two decades. In two decisions (SWANCC and Rapanos), the Supreme Court rejected the definitions adopted by the EPA and Army Corps of Engineers as overly expansive.
The Obama Administration sought to address the lingering uncertainty about the scope of CWA jurisdiction by issuing a broad WOTUS rule. This regulation prompted multiple lawsuits and significant court skepticism, and became one of the Trump Administration's primary deregulatory targets.
The Trump Administration sought to rescind the Obama WOTUS rule and put in one of its own, but this too prompted legal challenge. Both WOTUS rules had vulnerabilities, but the Trump rule was more consistent with the Supreme Court's guidance than the more expansive Obama rule, even if not without flaws. It, too, became a major target of the next Administration.
The Biden Administration's decision not to seek vacatur of the Trump WOTUS rule was likely smart because trying to defend the Obama WOTUS rule would have been a losing proposition in court. Further, the remand-without-vacatur enables the Biden EPA and Army Corps to focus on developing their own, more legally defensible rule while not having to devote significant time and energy to defending the work of others. (The Obama rule is off the board, and the Trump rule is remanded.) This sort of strategy worked with the EPA's cross-state air pollution rule, which was also remanded without vacatur and then eventually upheld by the Supreme Court. We will see whether this same sort of strategy works for the EPA and Army Corps here.