Despite calls from Congress to hold off on announcing any new Waters of the United States regulation until the Supreme Court has ruled on Sackett v. Environmental Protection Agency in which EPA’s reach under the Clean Water Act is being litigated, the agency is expected to release its updated WOTUS regulation this week.
Since the release of its proposed rule in December 2021, the EPA has reportedly received over 120,000 public comments and conducted 10 regional roundtables.
The EPA rule is not expected to be much of an improvement over the Obama administration’s sweeping regulation that roped virtually any water into EPA’s regulatory powers whenever the agency determined there was a “significant nexus” between that water and a water that is clearly governed under the Clean Water Act (i.e., navigable and interstate waters and adjacent wetlands).
If all of the justices who made up the plurality opinion in Rapanos v. the United States (2006) are joined by at least two of the three justices subsequently appointed to the bench by Republican presidents, the reach of the Clean Water Act would be paired back to its original bounds. However, during oral argument, Chief Justice John Roberts and Justice Brett Kavanaugh appear to be wavering.