We have reported previously on the narrowing definition of "navigable waters" under the Clean Water Act, particularly with respect to the federal SPCC Rule (see here, for example; but see here (Rapanos decision in Sixth Circuit)). The significance of that trend – especially on enforcement – has finally been recognized by those outside of industry and the regulators. From the NYT today: "[M]idlevel E.P.A. officials said that internal studies indicated that as many as 45 percent of major polluters might be either outside regulatory reach or in areas where proving jurisdiction is overwhelmingly difficult."
Will this spur on a legislative fix? We’ll keep you posted. (Yes, pun intended.)