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Supreme Court to Review WOTUS Rule

The Supreme Court will consider whether federal district or appellate courts have jurisdiction to hear the lawsuit over the controversial Waters of the United States (WOTUS) Rule.  Many of the parties who are challenging the WOTUS Rule have filed suits in circuit and district courts due to uncertainty whether key provisions of the Clean Water Act (CWA) apply to the WOTUS Rule.  The suits filed in seven circuit courts were consolidated in the Sixth Circuit U.S. Court of Appeals, while more than a dozen district court challenges proceeded separately. 

The WOTUS Rule was proposed by the U.S. Environmental Protection Agency (USEPA) and the U.S. Army Corps of Engineers (USACE) as part of the Clean Water Rule under the CWA, with the goal of clarifying the agencies’ authority over various bodies of water. The WOTUS Rule broadened federal oversight beyond “navigable waters” to include upstream waters, as well as intermittent streams and prairie potholes.

Critics of the Clean Water Rule say it is contrary to the Congressional intent of the CWA, and it infringes on the ability of the States to regulate their own natural resources. USEPA has repeatedly said the Clean Water Rule only applies to the types of waters that have historically been covered under the CWA, which does not include most ditches, groundwater, shallow subsurface flows, or tile drains.

If you have questions about how the Clean Water Rule could impact your facilities, planned projects, or existing programs, contact Jeff Hruby, PE, AE2S Civil Practices Director and AE2S Water Resources Practice Leader, at Jeff.Hruby@ae2s.com.






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