54:4 Uncertain Waters: the Legal Implications of the “New Waters of the United States” Rule on the Energy Sector and a Potential Remedy Within Administrative Law


This Comment examines the struggle surrounding the meaning of “Waters of the United States” in the context of the Clean Water Act (CWA) and recent efforts by the Environmental Protection Agency and Army Corps of Engineers to define the term through the notice and comment rule making process. The Comment proceeds in Part I to discuss the evolution of case law surrounding the meaning of WOTUS and highlights the contrast between the Court’s approach to interpreting the CWA and the agencies’ approach. These conflicting approaches leave private parties uncertain of the CWA’s jurisdictional reach. In Part II, the effects of this uncertainty are applied in an oil and gas context to reveal grave resulting economic consequences. The Comment concludes in Part III by evaluating one legal option within administrative law, which if followed, could remedy these economic concerns and restore regulatory certainty for the energy sector.