The EPA and the U.S. Army Corps of Engineers face yet another lawsuit in a waters of the United States rule that was finalized on Oct. 22, 2019. (DTN photo by Chris Clayton)

NY - States Want Significant Nexus in WOTUS

EPA, Corps of Engineers Face Third Lawsuit on WOTUS Rule

Fourteen states, the city of New York and the District of Columbia have asked a federal court to vacate the latest EPA and U.S. Army Corps of Engineers action on the waters of the United States, or WOTUS, rule and apply a significant nexus test when regulating waters across the country.

A new federal lawsuit alleges the agencies failed to follow the Administrative Procedure Act when completing a rule that resets the WOTUS rule back from the 2015 version to the 1986 version while the agencies work on a rewrite.

One of the hallmarks of the 2015 WOTUS rule was the use of a significant nexus test when determining jurisdictional waters. That is, non-traditionally navigable waters such as headwater streams and some wetlands are protected if they significantly affect the integrity of traditional navigable waters.

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