In June 2015, the Environmental Protection Agency and the Army Corps of Engineers released a rule to define “waters of the United States,” affectionately referred to as WOTUS. This definition goes to the scope of federal jurisdiction over wetlands and other waters that are not obviously free flowing and navigable. An in-depth analysis of the rule can be found here.
The rule hasn’t exactly played to rave reviews. It attracted over one million comments. Many complained the rule represents gross government overreach. Others criticize the rule for not being protective enough. The rule is also the subject of multiple challenges around the country, some filed before the rule was officially released. The lead case is now pending before the United States Court of Appeals for the Sixth Circuit. The Court of Appeals accepted original jurisdiction over a challenge to the rule based, in part, on the failure of the rule’s “distance limitations” to comport with good science, and on the inconsistency of the final rule with the proposed rule. The Court of Appeals thought enough of petitioners’ arguments that it stayed implementation of the new rule.
On this first anniversary of the rule, we thought a brief summary of the controversies surrounding the rule and current status might be helpful. The attached article, newly published in The Water Report, attempts to do just that. Many thanks to Diego Atencio, a third year law student at the University of Oregon and a summer associate at DWT, for his assistance in writing the article.