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It seems the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) are trying to pre-emptively answer potential changes to the Waters of the U.S. (WOTUS) rule before a decision from the U.S. Supreme Court.
The release of the Final WOTUS Rule by the EPA and the Corps while the U.S. Supreme Court is deliberating on the landmark case Sackett v. EPA is a thinly veiled attempt to address questions posed to the EPA during oral arguments to avoid a ruling in favor of landowners. The case focuses on the term “significant nexus”: how effected are downstream waters by upstream and/or adjacent activities and what does “adjacent” mean in the context of the Clean Water Act. The Final WOTUS Rule seeks to work as an end-run around the potential ruling of the U.S. Supreme Court by defining the bodies of water subject to WOTUS, clarifying what bodies of water are excluded from WOTUS jurisdiction, and creating a glossary of definitions.
Rather than releasing the Final Rule ahead of the conclusion of Sackett v. EPA, which could significantly alter the language of WOTUS and its reach, the EPA and Corps would have better served the U.S. by waiting for the court’s decision. Potentially duplicating or revising work completed and released so recently when a court decision is expected this spring is a wasteful use of funds and may create more long-term confusion. If the court’s decision alters the Final WOTUS Rule, all documentation, public information, and other materials will have to be updated just a few short months from now and a new push to help stakeholders understand the rule will have to occur.
Learn more about WOTUS here:
