A legal challenge against the Waters of the United States Rule (Rule), also known as WOTUS, will be heard by the U.S. Supreme Court (Court) despite a recent U.S. Department of Defense motion to hold the Court’s briefing schedule in abeyance. The motion was part of a larger effort to pause a decision on the Rule, as it is under review as part of President Trump’s February Executive Order that is likely to result in changes to the Rule or an outright repeal. The motion was opposed by both industry and environmental groups, however, and was denied by the Court with no explanation on April 3, 2017. Petitioner’s briefs on the case are currently due on April 13, and actions on the case will continue for several months.
The WOTUS Rule has been controversial since its introduction, with many stakeholders, including RCRC, opposing it as a jurisdictional overreach and inappropriate expansion of federal authority over bodies of water not previously controlled by the federal government. The rulemaking process itself was also derided as insufficient for receiving meaningful input from state and local governments, and even unlawful as the Government Accountability Office ruled EPA’s social media campaign seeking public support for the Rule to be “covert propaganda.” A number of lawsuits were filed once the Rule was finalized, and attempts have also been made to block implementation through the federal budget process. Implementation of the Rule is currently enjoined until the Court reaches a final decision on the pending legal case.