Jennie Bricker is an experienced attorney licensed in Oregon and Washington. Her practice focuses on the land, the shore, and the water—and the laws and regulations affecting them. See a list of representative projects…more
Jennie Bricker is a natural resources attorney with expertise in obtaining permits for projects that affect waterways and wetlands. She is also an experienced water law attorney…more
In collaboration with Harrang Long Gary Rudnick P.C., Jennie Bricker offers support to clients in litigation and appeals…more
Trained in a large Portland law firm, Jennie Bricker offers high-level legal expertise. Learn more about Jennie Bricker’s experience, education, publications, and presentations…more
The only thing more dynamic than water is the definition of “waters of the United States,” or WOTUS, under the federal Clean Water Act. The Environmental Protection Agency announced its revised WOTUS Rule in January, and the rule took effect on March 20, 2023, in nearly every state. In Idaho and Texas, the rule will not take effect until a federal court challenge is litigated.
The 2023 WOTUS Rule replaces the Trump administration’s 2020 Navigable Waters Protection Rule, which narrowed the scope of regulatory jurisdiction and was dubbed (by its detractors) as the “Trump Dirty Water Rule.” The NWPR was set aside in 2021 after numerous court challenges.
The Clean Water Act doesn’t clearly define “waters of the United States.” That omission leaves the scope of CWA jurisdiction to the agencies and the courts. In 2006, the Supreme Court helped muddy WOTUS in Rapanos v. United States, issuing five separate judicial opinions on how to determine the scope of regulation for activities that impact streams, lakes, and wetlands.
Since Rapanos, the WOTUS definition has been tough to pin down. Under the Obama administration, EPA and the U.S. Army Corps of Engineers issued the 2015 WOTUS Rule, expanding the scope of jurisdiction, but the rule got tied up in court and never took effect nationwide.
Now the new WOTUS Rule may suffer the same fate as its predecessors as the U.S. Supreme Court decides Sackett v. EPA. In Sackett, the Court will consider one of the WOTUS Rule’s central features, the “significant nexus” test for evaluating whether a wetland is subject to Clean Water Act regulation. Given the Court’s apparent hostility toward environmental regulation, Sackett may narrow the WOTUS Rule and leave the definition of “waters of the United States,” once again, in flux.