What’s the future of WOTUS?

April 07, 2016 | By DAMIEN SCHIFF

Last week I had the opportunity to speak on a panel during the annual spring meeting of the American Bar Association’s Section on Environment, Energy, and Resources.  The focus of my presentation was on the EPA and the Corps’ Clean Water Act rule interpreting the meaning of the “waters of the United States.”  I noted that one might almost feel sorry for the agencies in having spent so much time and effort trying to divine the meaning of Justice Kennedy’s “significant nexus” text, set forth in Rapanos v. United States, given that now, with Justice Scalia’s death, the views of Justice Kennedy (as the erstwhile swing voter) are significantly less relevant.