Last week, EPA and the Army Corps finally published their long-awaited rule defining “Waters of the United States.” Will the WOTUS rule finally provide the clarity for which we have been waiting, allowing the rule to be as “durable” as the agencies claim, or will it instead be dead on arrival, made irrelevant by the upcoming Supreme Court decision in Sackett, which many observers expect will significantly narrow the scope of jurisdiction under the Clean Water Act?
The agencies’ dream scenario is that SCOTUS ducks the issue in its Sackett decision, concluding that it doesn’t need to review the scope of CWA jurisdiction in order to determine the merits of the Sacketts’ position. Then, the agencies manage to persuade SCOTUS in review of the rule itself that the rule is largely consistent with how WOTUS has been interpreted for more than 40 years, with some minor tweaks to address additional scientific understanding and to provide additional certainty to the regulated community.
The agencies do a pretty good job making the argument; if you don’t want to read the entire 514 pages, the 11-page Executive Summary explains fairly clearly why the rule is consistent with the statutory language and the science in this area.
Without taking a position on the pros and cons of the specifics of the rule, I’ll only note that what’s funny, in a not very funny sort of way, is that the agencies are almost certainly right that protecting the marginal resources the rule is intended to protect is exactly what the statute says they should be doing – even though it remains unlikely at best that SCOTUS will care at all.
Still, all the agencies can do is implement the law as they understand it in order to attain the statutory goals. They’ve given SCOTUS a basis on which to uphold the WOTUS definition. Now, or soon, it will be up to SCOTUS.