The Trump Administration has signaled that it plans to expand energy production, expedite energy permitting, and ‘roll-back’ regulations and practices that impede growth. As part of this effort, Mr. Trump has named Lee Zeldin, a former GOP member of Congress, to lead the EPA.
Mr. Trump has stated that Mr. Zeldin wishes to “ensure fair and swift deregulatory decisions” while maintaining “the highest environmental standards, including the cleanest air and water on the planet.’' Further, Elon Musk and Vivek Ramaswamy, heads of the so-called Department of Government Efficiency, or DOGE, have vowed to work with the Trump Administration to use executive action “to pursue three major kinds of reform: regulatory rescissions, administrative reductions and cost savings.”
 

While there are many statutorily mandated regulatory programs and practices that are not easily ignored or revised, there are several regulations and practices that impede growth in violation of the governing statute and/or case law interpreting that statute.  One area that Mr. Zeldin and DOGE can focus on is the EPA/Corps of Engineers’ regulatory definition and interpretation of ‘navigable waters’ and ‘waters of the United States’ in the Clean Water Act.
  

Under the CWA, “navigable waters” means the “waters of the United States,” or WOTUS.  EPA/Corps promulgated a simple regulatory definition of WOTUS in the early 1970s.  Since then, though, EPA/Corps have expanded the regulatory definition, and their interpretations of the CWA and that definition, to include, as stated in Sackett v, EPA, “almost all waters and wetlands across the country [such that they] theoretically could be subject to a case specific jurisdictional determination.” Obviously, an expansive definition impairs growth and prevents development.  
 

Over the years, the US Supreme Court has issued several decisions seeking to clarify the meaning of WOTUS and curtail the EPA/Corps’ ever-expanding view of their jurisdiction.  Most recently, the Supreme Court issued its decision in Sackett, which was a full-throated endorsement of Justice Scalia’s plurality opinion in Rapanos v. US.  The Sackett Court completely rejected the ‘significant nexus’ test espoused by Justice Kennedy in his concurrence in Rapanos.
 

In Sackett, the Supreme Court stated that, to be jurisdictional, the adjacent wetlands “must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.’”  According to the Supreme Court, this requires the party asserting jurisdiction over adjacent wetlands, that is, the EPA/Corps, to establish: 1) that the adjacent body of water constitutes WOTUS (i.e., a relatively permanent body of water connected to traditional interstate navigable waters) and 2) that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.
 

The EPA/Corps, though, do not seem willing to adopt and apply this simple formulation of WOTUS and the resulting jurisdictional scope over adjacent wetlands. Instead, they seem to retain their previous expansive interpretations to maintain or assert jurisdiction over wetlands that should not, post-Sackett, be included within the scope of the CWA.
  

By way of example, in one pre-Sackett jurisdictional determination, the EPA/Corps relied on the ’significant nexus’ test to assert jurisdiction over isolated wetlands.  After a request to review that prior determination in the wake of Sackett, the EPA/Corps determined that the very same isolated wetlands remained jurisdictional. EPA/Corps merely changed the designation of the ditches draining the wetland area to now claim that those ditches provide a ‘continuous surface connection,’ even though in the prior determination they claimed those same ditches were ephemeral at best.
  

These approved jurisdictional determinations are subject to judicial review under the Administrative Procedure Act. In other words, the recipient may file a petition or complaint for federal judicial review of that AJD.  Additionally, since the Supreme Court’s decision in Corner Post, such a review may be filed within six years of the harm or injury from the AJD and not the date of issuance of that AJD.  Still, the EPA/Corps should faithfully apply Sackett in the first instance instead of issuing expansive AJDs and requiring recipients to seek judicial review.
 

There are presumably many fertile grounds for DOGE to attack throughout the federal government.  However, the EPA/Corps’ current interpretation of WOTUS stifles, delays, and impairs growth and development, contrary to the Supreme Court’s express ruling in Sackett. Mr. Zeldin and DOGE would help growth tremendously if they addressed this issue as one of their first priorities.  

 

The Trump Administration has signaled that it plans to expand energy production, expedite energy permitting, and ‘roll-back’ regulations and practices that impede growth. As part of this effort, Mr. Trump has named Lee Zeldin, a former GOP member of Congress, to lead the EPA.
Mr. Trump has stated that Mr. Zeldin wishes to “ensure fair and swift deregulatory decisions” while maintaining “the highest environmental standards, including the cleanest air and water on the planet.’' Further, Elon Musk and Vivek Ramaswamy, heads of the so-called Department of Government Efficiency, or DOGE, have vowed to work with the Trump Administration to use executive action “to pursue three major kinds of reform: regulatory rescissions, administrative reductions and cost savings.”
 

While there are many statutorily mandated regulatory programs and practices that are not easily ignored or revised, there are several regulations and practices that impede growth in violation of the governing statute and/or case law interpreting that statute.  One area that Mr. Zeldin and DOGE can focus on is the EPA/Corps of Engineers’ regulatory definition and interpretation of ‘navigable waters’ and ‘waters of the United States’ in the Clean Water Act.
  

Under the CWA, “navigable waters” means the “waters of the United States,” or WOTUS.  EPA/Corps promulgated a simple regulatory definition of WOTUS in the early 1970s.  Since then, though, EPA/Corps have expanded the regulatory definition, and their interpretations of the CWA and that definition, to include, as stated in Sackett v, EPA, “almost all waters and wetlands across the country [such that they] theoretically could be subject to a case specific jurisdictional determination.” Obviously, an expansive definition impairs growth and prevents development.  
 

Over the years, the US Supreme Court has issued several decisions seeking to clarify the meaning of WOTUS and curtail the EPA/Corps’ ever-expanding view of their jurisdiction.  Most recently, the Supreme Court issued its decision in Sackett, which was a full-throated endorsement of Justice Scalia’s plurality opinion in Rapanos v. US.  The Sackett Court completely rejected the ‘significant nexus’ test espoused by Justice Kennedy in his concurrence in Rapanos.
 

In Sackett, the Supreme Court stated that, to be jurisdictional, the adjacent wetlands “must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.’”  According to the Supreme Court, this requires the party asserting jurisdiction over adjacent wetlands, that is, the EPA/Corps, to establish: 1) that the adjacent body of water constitutes WOTUS (i.e., a relatively permanent body of water connected to traditional interstate navigable waters) and 2) that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.
 

The EPA/Corps, though, do not seem willing to adopt and apply this simple formulation of WOTUS and the resulting jurisdictional scope over adjacent wetlands. Instead, they seem to retain their previous expansive interpretations to maintain or assert jurisdiction over wetlands that should not, post-Sackett, be included within the scope of the CWA.
  

By way of example, in one pre-Sackett jurisdictional determination, the EPA/Corps relied on the ’significant nexus’ test to assert jurisdiction over isolated wetlands.  After a request to review that prior determination in the wake of Sackett, the EPA/Corps determined that the very same isolated wetlands remained jurisdictional. EPA/Corps merely changed the designation of the ditches draining the wetland area to now claim that those ditches provide a ‘continuous surface connection,’ even though in the prior determination they claimed those same ditches were ephemeral at best.
  

These approved jurisdictional determinations are subject to judicial review under the Administrative Procedure Act. In other words, the recipient may file a petition or complaint for federal judicial review of that AJD.  Additionally, since the Supreme Court’s decision in Corner Post, such a review may be filed within six years of the harm or injury from the AJD and not the date of issuance of that AJD.  Still, the EPA/Corps should faithfully apply Sackett in the first instance instead of issuing expansive AJDs and requiring recipients to seek judicial review.
 

There are presumably many fertile grounds for DOGE to attack throughout the federal government.  However, the EPA/Corps’ current interpretation of WOTUS stifles, delays, and impairs growth and development, contrary to the Supreme Court’s express ruling in Sackett. Mr. Zeldin and DOGE would help growth tremendously if they addressed this issue as one of their first priorities.  

 

The Trump Administration has signaled that it plans to expand energy production, expedite energy permitting, and ‘roll-back’ regulations and practices that impede growth. As part of this effort, Mr. Trump has named Lee Zeldin, a former GOP member of Congress, to lead the EPA.
Mr. Trump has stated that Mr. Zeldin wishes to “ensure fair and swift deregulatory decisions” while maintaining “the highest environmental standards, including the cleanest air and water on the planet.’' Further, Elon Musk and Vivek Ramaswamy, heads of the so-called Department of Government Efficiency, or DOGE, have vowed to work with the Trump Administration to use executive action “to pursue three major kinds of reform: regulatory rescissions, administrative reductions and cost savings.”
 

While there are many statutorily mandated regulatory programs and practices that are not easily ignored or revised, there are several regulations and practices that impede growth in violation of the governing statute and/or case law interpreting that statute.  One area that Mr. Zeldin and DOGE can focus on is the EPA/Corps of Engineers’ regulatory definition and interpretation of ‘navigable waters’ and ‘waters of the United States’ in the Clean Water Act.
  

Under the CWA, “navigable waters” means the “waters of the United States,” or WOTUS.  EPA/Corps promulgated a simple regulatory definition of WOTUS in the early 1970s.  Since then, though, EPA/Corps have expanded the regulatory definition, and their interpretations of the CWA and that definition, to include, as stated in Sackett v, EPA, “almost all waters and wetlands across the country [such that they] theoretically could be subject to a case specific jurisdictional determination.” Obviously, an expansive definition impairs growth and prevents development.  
 

Over the years, the US Supreme Court has issued several decisions seeking to clarify the meaning of WOTUS and curtail the EPA/Corps’ ever-expanding view of their jurisdiction.  Most recently, the Supreme Court issued its decision in Sackett, which was a full-throated endorsement of Justice Scalia’s plurality opinion in Rapanos v. US.  The Sackett Court completely rejected the ‘significant nexus’ test espoused by Justice Kennedy in his concurrence in Rapanos.
 

In Sackett, the Supreme Court stated that, to be jurisdictional, the adjacent wetlands “must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.’”  According to the Supreme Court, this requires the party asserting jurisdiction over adjacent wetlands, that is, the EPA/Corps, to establish: 1) that the adjacent body of water constitutes WOTUS (i.e., a relatively permanent body of water connected to traditional interstate navigable waters) and 2) that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.
 

The EPA/Corps, though, do not seem willing to adopt and apply this simple formulation of WOTUS and the resulting jurisdictional scope over adjacent wetlands. Instead, they seem to retain their previous expansive interpretations to maintain or assert jurisdiction over wetlands that should not, post-Sackett, be included within the scope of the CWA.
  

By way of example, in one pre-Sackett jurisdictional determination, the EPA/Corps relied on the ’significant nexus’ test to assert jurisdiction over isolated wetlands.  After a request to review that prior determination in the wake of Sackett, the EPA/Corps determined that the very same isolated wetlands remained jurisdictional. EPA/Corps merely changed the designation of the ditches draining the wetland area to now claim that those ditches provide a ‘continuous surface connection,’ even though in the prior determination they claimed those same ditches were ephemeral at best.
  

These approved jurisdictional determinations are subject to judicial review under the Administrative Procedure Act. In other words, the recipient may file a petition or complaint for federal judicial review of that AJD.  Additionally, since the Supreme Court’s decision in Corner Post, such a review may be filed within six years of the harm or injury from the AJD and not the date of issuance of that AJD.  Still, the EPA/Corps should faithfully apply Sackett in the first instance instead of issuing expansive AJDs and requiring recipients to seek judicial review.
 

There are presumably many fertile grounds for DOGE to attack throughout the federal government.  However, the EPA/Corps’ current interpretation of WOTUS stifles, delays, and impairs growth and development, contrary to the Supreme Court’s express ruling in Sackett. Mr. Zeldin and DOGE would help growth tremendously if they addressed this issue as one of their first priorities.  

 

The Trump Administration has signaled that it plans to expand energy production, expedite energy permitting, and ‘roll-back’ regulations and practices that impede growth. As part of this effort, Mr. Trump has named Lee Zeldin, a former GOP member of Congress, to lead the EPA.
Mr. Trump has stated that Mr. Zeldin wishes to “ensure fair and swift deregulatory decisions” while maintaining “the highest environmental standards, including the cleanest air and water on the planet.’' Further, Elon Musk and Vivek Ramaswamy, heads of the so-called Department of Government Efficiency, or DOGE, have vowed to work with the Trump Administration to use executive action “to pursue three major kinds of reform: regulatory rescissions, administrative reductions and cost savings.”
 

While there are many statutorily mandated regulatory programs and practices that are not easily ignored or revised, there are several regulations and practices that impede growth in violation of the governing statute and/or case law interpreting that statute.  One area that Mr. Zeldin and DOGE can focus on is the EPA/Corps of Engineers’ regulatory definition and interpretation of ‘navigable waters’ and ‘waters of the United States’ in the Clean Water Act.
  

Under the CWA, “navigable waters” means the “waters of the United States,” or WOTUS.  EPA/Corps promulgated a simple regulatory definition of WOTUS in the early 1970s.  Since then, though, EPA/Corps have expanded the regulatory definition, and their interpretations of the CWA and that definition, to include, as stated in Sackett v, EPA, “almost all waters and wetlands across the country [such that they] theoretically could be subject to a case specific jurisdictional determination.” Obviously, an expansive definition impairs growth and prevents development.  
 

Over the years, the US Supreme Court has issued several decisions seeking to clarify the meaning of WOTUS and curtail the EPA/Corps’ ever-expanding view of their jurisdiction.  Most recently, the Supreme Court issued its decision in Sackett, which was a full-throated endorsement of Justice Scalia’s plurality opinion in Rapanos v. US.  The Sackett Court completely rejected the ‘significant nexus’ test espoused by Justice Kennedy in his concurrence in Rapanos.
 

In Sackett, the Supreme Court stated that, to be jurisdictional, the adjacent wetlands “must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.’”  According to the Supreme Court, this requires the party asserting jurisdiction over adjacent wetlands, that is, the EPA/Corps, to establish: 1) that the adjacent body of water constitutes WOTUS (i.e., a relatively permanent body of water connected to traditional interstate navigable waters) and 2) that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.
 

The EPA/Corps, though, do not seem willing to adopt and apply this simple formulation of WOTUS and the resulting jurisdictional scope over adjacent wetlands. Instead, they seem to retain their previous expansive interpretations to maintain or assert jurisdiction over wetlands that should not, post-Sackett, be included within the scope of the CWA.
  

By way of example, in one pre-Sackett jurisdictional determination, the EPA/Corps relied on the ’significant nexus’ test to assert jurisdiction over isolated wetlands.  After a request to review that prior determination in the wake of Sackett, the EPA/Corps determined that the very same isolated wetlands remained jurisdictional. EPA/Corps merely changed the designation of the ditches draining the wetland area to now claim that those ditches provide a ‘continuous surface connection,’ even though in the prior determination they claimed those same ditches were ephemeral at best.
  

These approved jurisdictional determinations are subject to judicial review under the Administrative Procedure Act. In other words, the recipient may file a petition or complaint for federal judicial review of that AJD.  Additionally, since the Supreme Court’s decision in Corner Post, such a review may be filed within six years of the harm or injury from the AJD and not the date of issuance of that AJD.  Still, the EPA/Corps should faithfully apply Sackett in the first instance instead of issuing expansive AJDs and requiring recipients to seek judicial review.
 

There are presumably many fertile grounds for DOGE to attack throughout the federal government.  However, the EPA/Corps’ current interpretation of WOTUS stifles, delays, and impairs growth and development, contrary to the Supreme Court’s express ruling in Sackett. Mr. Zeldin and DOGE would help growth tremendously if they addressed this issue as one of their first priorities.  

 

The Trump Administration has signaled that it plans to expand energy production, expedite energy permitting, and ‘roll-back’ regulations and practices that impede growth. As part of this effort, Mr. Trump has named Lee Zeldin, a former GOP member of Congress, to lead the EPA.
Mr. Trump has stated that Mr. Zeldin wishes to “ensure fair and swift deregulatory decisions” while maintaining “the highest environmental standards, including the cleanest air and water on the planet.’' Further, Elon Musk and Vivek Ramaswamy, heads of the so-called Department of Government Efficiency, or DOGE, have vowed to work with the Trump Administration to use executive action “to pursue three major kinds of reform: regulatory rescissions, administrative reductions and cost savings.”
 

While there are many statutorily mandated regulatory programs and practices that are not easily ignored or revised, there are several regulations and practices that impede growth in violation of the governing statute and/or case law interpreting that statute.  One area that Mr. Zeldin and DOGE can focus on is the EPA/Corps of Engineers’ regulatory definition and interpretation of ‘navigable waters’ and ‘waters of the United States’ in the Clean Water Act.
  

Under the CWA, “navigable waters” means the “waters of the United States,” or WOTUS.  EPA/Corps promulgated a simple regulatory definition of WOTUS in the early 1970s.  Since then, though, EPA/Corps have expanded the regulatory definition, and their interpretations of the CWA and that definition, to include, as stated in Sackett v, EPA, “almost all waters and wetlands across the country [such that they] theoretically could be subject to a case specific jurisdictional determination.” Obviously, an expansive definition impairs growth and prevents development.  
 

Over the years, the US Supreme Court has issued several decisions seeking to clarify the meaning of WOTUS and curtail the EPA/Corps’ ever-expanding view of their jurisdiction.  Most recently, the Supreme Court issued its decision in Sackett, which was a full-throated endorsement of Justice Scalia’s plurality opinion in Rapanos v. US.  The Sackett Court completely rejected the ‘significant nexus’ test espoused by Justice Kennedy in his concurrence in Rapanos.
 

In Sackett, the Supreme Court stated that, to be jurisdictional, the adjacent wetlands “must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.’”  According to the Supreme Court, this requires the party asserting jurisdiction over adjacent wetlands, that is, the EPA/Corps, to establish: 1) that the adjacent body of water constitutes WOTUS (i.e., a relatively permanent body of water connected to traditional interstate navigable waters) and 2) that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.
 

The EPA/Corps, though, do not seem willing to adopt and apply this simple formulation of WOTUS and the resulting jurisdictional scope over adjacent wetlands. Instead, they seem to retain their previous expansive interpretations to maintain or assert jurisdiction over wetlands that should not, post-Sackett, be included within the scope of the CWA.
  

By way of example, in one pre-Sackett jurisdictional determination, the EPA/Corps relied on the ’significant nexus’ test to assert jurisdiction over isolated wetlands.  After a request to review that prior determination in the wake of Sackett, the EPA/Corps determined that the very same isolated wetlands remained jurisdictional. EPA/Corps merely changed the designation of the ditches draining the wetland area to now claim that those ditches provide a ‘continuous surface connection,’ even though in the prior determination they claimed those same ditches were ephemeral at best.
  

These approved jurisdictional determinations are subject to judicial review under the Administrative Procedure Act. In other words, the recipient may file a petition or complaint for federal judicial review of that AJD.  Additionally, since the Supreme Court’s decision in Corner Post, such a review may be filed within six years of the harm or injury from the AJD and not the date of issuance of that AJD.  Still, the EPA/Corps should faithfully apply Sackett in the first instance instead of issuing expansive AJDs and requiring recipients to seek judicial review.
 

There are presumably many fertile grounds for DOGE to attack throughout the federal government.  However, the EPA/Corps’ current interpretation of WOTUS stifles, delays, and impairs growth and development, contrary to the Supreme Court’s express ruling in Sackett. Mr. Zeldin and DOGE would help growth tremendously if they addressed this issue as one of their first priorities.