Can The Latest WOTUS Rule Survive Supreme Court Scrutiny?
After years of back-and-forth changes, the controversial Waters of the United States (WOTUS) rule has just received a revision from the U.S. EPA and U.S. Department of the Army, meant to be its final change. But there could be reason for skepticism that this latest iteration is the one that finally sticks.
“The question of what is a ‘water of the U.S.,’ or WOTUS, has been the subject of fierce debate and litigation ever since Congress passed the Clean Water Act in 1972,” E&E News reported. “Wading into the controversy and writing a regulation that could withstand legal challenges would be a tall order at any time, but especially now as the Supreme Court is already weighing questions of federal jurisdiction.”
Under the Obama administration, WOTUS was defined as a layer of the Clean Water Act to clarify water resource management and protect the environment, then the Trump administration revised the rule to ease the burden on agricultural and industrial operations, implementing the Navigable Waters Protection Rule, which was later tossed out in court. With President Biden taking office, the U.S. EPA announced its intention to once again revise the rule in 2021.
Even with that latest revision announced, however, the history of WOTUS makes it clear that any lasting definition of the rule or accompanying clarity for source water quality protection is unlikely. Still, the Biden administration appears hopeful that its latest version of the rule, which largely focuses on defining “adjacent wetlands,” will pass without the same level of scrutiny that has overturned previous versions.
“A source familiar with the rule but unauthorized to speak on the matter told E&E News that the administration is not concerned that the Supreme Court ruling could upend the new regulation, in part because, as the administration stated in oral arguments, it believes the justices should limit their decision to answering the question of whether adjacent wetlands separated from navigable waterways by berms are jurisdictional,” the outlet reported. “The administration does not believe a new test for determining federal jurisdiction is warranted.”
The 2023 version of WOTUS will go into effect 60 days after it is published in the Federal Register, and forthcoming legal challenges and changes are pending. In the meantime, those concerned with the nation’s source water quality and connected regulations will have to once again wait and see how this cornerstone legislation evolves. It is certain, however, that any change will have a significant impact, particularly on agricultural operations.
“This is a substantial expansion compared to the pre-2015 framework,” Anna Wildeman, a Washington, D.C. legal council, told Bloomberg Law. “Practically speaking, the final rule will require landowners, farmers, and ranchers to conduct a watershed-wide assessment of all waters to understand if a wet area on their property may be jurisdictional.”
To read more about the laws that dictate source water protection, visit Water Online’s Regulations And Legislation Solutions Center.