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What waters can be regulated as “navigable waters” under the Clean Water Act? This seemingly simple question has been anything but simple, with decades of federal overreach by the EPA and Army Corps of Engineers. As property owners, from farmers to homebuilders know all too well, there is massive confusion. This confusion is largely due to the government applying vague and subjective definitions of regulated waters, including what is meant by “waters of the United States” or WOTUS. In many instances, property owners may unwittingly violate the government’s often changing and inconsistent application of the CWA, and this can lead to harsh civil and criminal penalties. The good news is the U.S. Supreme Court could provide some clarity in a case called Sackett v. EPA. In this latest edition of the Center for Energy, Climate, and Environment’s PowerCast, Daren Bakst, host of the PowerCast and Senior Research Fellow in Environmental Policy and Regulation, is joined by Charles Yates, an attorney at the Pacific Legal Foundation, the organization representing the Sacketts, to help explain the WOTUS issue, the Sackett case, and recent developments, including the Biden administration publishing yet another final WOTUS rule.
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