Troubled Waters at the High Court
On Jan. 13, the U.S. Supreme Court granted certiorari in a case involving the controversial Clean Water rule (often referred to as the “Waters of the United States” or “WOTUS” rule) issued by the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency. Just one week later—on the day the new president was inaugurated—the White House posted on its website an “America First Energy Plan” announcing that President Donald Trump "is committed to eliminating harmful and unnecessary policies such as the Climate Action Plan and the Waters of the U.S. rule.”
The WOTUS rule litigation and political debate are the latest skirmish in the continuing battle over the scope of Clean Water Act (CWA) jurisdiction, which has been hotly contested for decades in the courts, Congress and public arena. Federal CWA jurisdiction has important practical and financial ramifications for owners, managers, farmers, developers and operators of property throughout the nation because it defines what features constitute a wetland or waterway that require a federal permit before they can be developed or a regulated discharge can occur, and it governs potential enforcement for any violations.