On September 12, with exactly three weeks until the U.S. Supreme Court hears oral argument in the Sackett v. EPA case, EPA sent the latest iteration of a final rule to define “Waters of the U.S.” (WOTUS) to the Office of Management and Budget for interagency review. While the Court may not issue an opinion for several months after the October 3 oral argument, WOTUS watchers will focus on the Court’s questioning and demeanor, with everyone (including EPA) trying to read the tea leaves of where the justices will land on the next big ticket WOTUS decision. EPA is moving ahead with its final rule, even though the Court may narrow the scope of waters subject to federal jurisdiction, at least with respect to the application of the significant nexus formulation preferred by the Biden administration. EPA’s timing is not all that surprising — issuing a final rule before the Court issues an opinion provides EPA with an opportunity to publicly frame, in final form, the policy preferences of this administration, while leaving open the possibility that EPA can interpret the Court’s decision, when issued, as consistent with its final rule.
