WOTUS Rule's 'Wet Season' Test, Exemptions Expected to Spur Confusion

Environmental attorney Jeff Porter was quoted in an Inside EPA article on the federal government's proposed rule amending the definition of "waters of the United States" (WOTUS) and the confusion it could spark for courts and stakeholders. The proposed definition from the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers excludes groundwater and thus removes it from federal jurisdiction under the Clean Water Act (CWA). However, Mr. Porter contends in a blog post highlighted by Inside EPA that some may claim the exclusion does not go far enough, given that it cites the U.S. Supreme Court's 2020 Maui decision that concluded the CWA can require permits for releases that are the "functional equivalent" of a discharge into protected waters while also referencing the high court's 2023 Sackett decision that reduced wetland protections under the CWA. He opined the agency should make definitive its stance on groundwater discharges to reduce ambiguity and guide courts in responding to future lawsuits.

"EPA should clarify its view on this very important topic so that, in the inevitable litigation over this most recent proposal, the courts can understand it and evaluate its basis," he stated in the post.

READ: WOTUS Rule's 'Wet Season' Test, Exemptions Expected to Spur Confusion (Subscription required)