Why Are 11 US States Suing The EPA And Army Corps Over Water Quality?

Links to parts 1 and 2 of this 4 part series on "waters of the united states"

Why Are 11 US States Suing The EPA And Army Corps Over Water Quality?

Part Two: Wetlands In The Clean Water Act 

...One opinion, from Justice Anthony Kennedy, drew on centuries of laws, science and precedent to conclude that waters of the United States are those that have a “significant nexus” to waters that are “navigable in fact” (as opposed to merely “navigable”). The other opinion, from Justice Antonin Scalia, threw centuries of science and precedent to the wind and drew instead on the literal definition of “waters” as found in the Second Edition of Webster’s New International Dictionary. Scalia concluded that waters of the United States are limited to “streams[,] . . . oceans, rivers, [and] lakes” – a definition that excluded 98 percent of the continent’s waterways and meant that anyone could dig up wetlands (which he dismissed as “puddles”), dredge them, or fill them without regard for downstream consequences – which is exactly what people used to do in the bad old days of burning rivers and bubbly creeks. “Lower courts and regulated entities will now have to feel their way on a case-by-case basis,” predicted then new Chief Justice John Roberts – and he was right. Although the Environmental Protection Agency scrambled to create post-Rapanos guidance for determining what was and what was not part of “the waters of the United States” under the CWA, developers and regulators increasingly found themselves turning to the courts. Most courts, it turns out, followed the Kennedy definition, with some following both, and in 2015 the Obama administration issued 75 pages of guidance called the “Waters of the United States” (WOTUS) rule, designed to fix the mess.

...So, here we are – coincidentally two years to the week after the deaths of both Scalia and Rapanos, who died three days apart from each other, on February 11 and 14, 2016 – and Rapanos vs United States is in the news again, hanging over the rivers, streams, bogs, swamps, and lakes of America ...