The recent unexpected death of Supreme Court Justice Antonin Scalia may complicate legal strategies related to opposing the implementation of the “Waters of the United States” provisions (WOTUS). As previously reported, the controversial WOTUS measure is on hold pending resolution of several court challenges. Scalia was expected to be a key vote in striking the rule down as unconstitutional. The Court is currently divided along ideological lines, and most observers expect that if the Supreme Court voted today the justices’ opinions would be deadlocked in a 4-4 tie. A 4-4 ruling on any issue would default to the lower court ruling, which has yet to reach its own verdict.
On the legislative front, there are several potential vehicles where WOTUS repeal language could be inserted. Possible legislative vehicles include the Water Resources Development Act which will have language addressing infrastructure issues including the water crisis in Flint, Michigan, and the Energy and Water Appropriations bill which oversees and funds the Army Corps of Engineers. Appropriations hearings are scheduled to begin in early March. NALP, our industry allies, and other key stake holders are diligently working to oppose efforts to implement the WOTUS rule. We will keep members apprised as issues develop.