Roiling the Waters: Clean Water Act “Navigable Waters” Definition – Litigation and Regulatory Developments

The Clean Water Act authorizes the Environmental Protection Agency and U.S. Army to regulate discharges to “navigable waters,” defined in the statute as “waters of the United States, including the territorial seas.” The agency regulations further defining these terms have engendered controversy and litigation for decades. Since 2015, the agencies have modified their Navigable Waters regulations three times, and dozens of federal lawsuits have challenged the various versions. Meanwhile, the validity of these regulations have been the key issue in several enforcement cases. On December 7, 2021, the agencies proposed yet a fourth revision in six years to the regulatory definition of Navigable Waters. This teleforum will update listeners on the key pending cases that may have an ultimate effect on the agency regulations, and provide an overview of the proposed new regulation. Featuring: Charles Yates, attorney in Pacific Legal Foundation’s environmental practice group, where he litigates to defend private property rights and uphold the structural protections guaranteed by the Constitution’s separation of powers. Tony Francois, who is experienced in Water and Real Property Law, Land Use and Zoning, Environmental Regulation, Natural Resources Development, Agricultural Law, and Constitutional Law. He has represented homeowners, builders, farmers and ranchers, trade associations, and water districts in administrative, civil, and criminal proceedings before state and federal administrative agencies and state and federal trial and appellate courts.