Peter Alpert Examines the “Final” WOTUS Rule

In The News
February 1, 2023

An article from EHS Daily Advisor reported that the long-awaited rule, “Revised Definition of ‘Waters of the United States (WOTUS),’” will go into effect on March 20, 2023. The piece offers a deep dive into WOTUS, which determines the Environmental Protection Agency’s authority under the Clean Water Act.

Two cases before the U.S. Supreme Court are expected to challenge the legality of this regulation. Peter Alpert, partner in the real estate investments & transactions group, commented on the ongoing Sackett case, which involves a dispute over “wetland” property, and the subsequent precedent-setting Rapanos case. “The EPA argues that the Sacketts’ wetland is jurisdictional under Justice Anthony Kennedy’s opinion in Rapanos, which articulated a broader, ‘nexus’-based test for identifying wetlands that the EPA may regulate for the sake of water quality, and also under regulations through which the EPA and the Corps administered the Section 404 program long before Rapanos was decided.”

Though the two matters are still pending, Peter added that the Sackett decision is unlikely to “strip the EPA of any authority to regulate wetlands until Congress speaks.”