The Volokh Conspiracy

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Supreme Court

Let the WOTUS Wars Commence

The EPA and Supreme Court set the stage for important legal decisions on the scope of the Clean Water Act.


Last week, the Environmental Protection Agency (EPA) published its proposed rule to redefine the meaning of "waters of the United States" (WOTUS) under the Clean Water Act in the Federal Register.

The WOTUS rule is important because it determines the scope of the federal government's regulatory jurisdiction over waters and wetlands under the CWA. The new definition was initially proposed in December, but was not published until now. There is always some delay between the release of a proposal and its publication, but this delay was longer than usual, likely due to a combination of factors, including the holidays and government shutdown.

With publication of the proposed rule, the 60-day comment period has begun. Expect there to be lots of comments, as many environmentalist organizations object to the proposed definition, while many industries and land rights groups support the effort. Both sides will be seeking to seed the comments with arguments for and against revising the WOTUS definition in anticipation of eventual litigation over the final rule. The comment period ends on April 15.

While the Trump Administration's WOTUS rewrite won't reach the courts for awhile, other WOTUS-related litigation continues, including legal challenges to the Obama Administation's WOTUS rule and the Trump Administration's attempt to suspend the Obama WOTUS rule pending the rewrite. Both the Obama definition and the Trump suspension have faced some trouble in court, and litigation is ongoing.

This morning, another front in the WOTUS wars opened as the Supreme Court accepted a petition for certiorari in County of Maui v. Hawaii Wildlife Fund, which presents the question whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. The Maui case is one of several cases raising the broader issue of whether the CWA may reach pollution that travels through groundwater—effectively treating the groundwater as a "conduit" for covered point-source pollution. (Another, still pending at the Court, is Kinder Morgan Energy Partners v. Upstate Forever.)

Maui will have important implications for the scope of federal regulatory authority as well. Indeed, how the Supreme Court resolves the Maui case may preview how the justices will approach the eventual litigation over WOTUS. But we'll have to wait a little for that, as the Court will not hear arguments in this case until the fall.