EPA’s New Clean Water Rule Will Make WOTUS A Rallying Cry Against POTUS

On Friday, barring a last-minute judicial intervention, hundreds of millions of acres of land across the country will fall under Obama administration’s broad new Clean Water Rule, which defines “waters of the U.S.” to include virtually any wet area — even a rain-fed temporary pool — that is close to any other body of water with a physical connection to a navigable waterway. Waters of the U.S., or WOTUS, is likely to become a rallying cry for landowners who resent the administration’s attempts to steadily expand the limits of federal jurisdiction.


The Clean Water Rule already has spawned a dozen lawsuits and almost certainly will wind up before the U.S. Supreme Court, which limited federal jurisdiction over inland wetlands in a 2006 decision that ironically provides the legal underpinnings for the new rule. The Obama administration seized upon a term in Justice Anthony Kennedy’s concurrence to the 5-4 opinion in Rapanos v. U.S., “significant nexis,” to assert automatic control over almost any body of water whose molecules might wind up in a navigable waterway.


“While the prior regulations basically asserted the same thing, it was clear in my view, from the case law, that you can’t enforce these things categorically, without a site-specific examination,” said Damien Schiff, counsel with Alston & Bird focusing in Sacramento, Calif. “That was what everybody thought the rule was before.”


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