October 05, 2020

The Back Page: An Unwinnable Battle

Mark Ryan

We’re in the 2020 equivalent of trench warfare. The prize is the “Waters of the United States” (WOTUS) rule, and the battlefield is the courts. After six years of fighting over the WOTUS rule, we’re no closer to resolution than we were in 2015, when the Obama administration promulgated the rule and took the first shot at clearing up the confusion created by the Supreme Court’s SWANCC (2001) and Rapanos (2007) decisions. Determining whether something qualifies as a WOTUS is one of the fundamental elements of establishing Clean Water Act (CWA) jurisdiction, and the statutory definition of the term hasn’t changed since the Act was passed in 1972. It is reasonable to assume that we would have figured out by now what is a WOTUS. But we haven’t.

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