Opinion—The Waters of the US Controversy Continues

Feb 26, 2018

By Don Wallis.

The recent Supreme Court decision adds more uncertainty to the issue. 

During the Obama administration, the  U.S. Environmental Protection Agency (EPA) expanded its powers under the Waterways of the United States (WOTUS) Act to include virtually any water anywhere in the country no matter how remote from the “navigable waters of the United States.”

Business interests, especially farming and construction, cried foul and the issue has become the rallying point for those who think the Administrative State has over reached.

Implementation of the expanded Act has been on hold since 2015 while the matter worked its way from district courts to federal appellate courts and, ultimately, to the U.S. Supreme Court.

On January 22 of this year, as Pam Radtke Russell explains in an article in ENR, the Supreme Court, in a unanimous decision, ruled that “challenges to the controversial ‘waters of the United States’ rule should be heard by federal district, rather than appellate, courts.”

“’This decision may lead to some confusion in the coming days and weeks,’ the National Association of Home Builders (NAHB) said in a statement.”

This is an understatement.

At the present time, district courts in 13 states have placed a stay on implementation of the rule. “The 6th U.S. Circuit Court of Appeals later found it had jurisdiction and issued a nationwide stay of the rule, which has remained in place.” Ms. Russell explains that litigation currently underway, coupled with additional lawsuits, will postpone a final resolution of the issue for at least a year.

This leaves contractors in limbo. Projects that have been on hold since 2015, pending final resolution of the controversy, will remain on hold for a least another year.

It’s true that this issue is critically important to the construction industry and to the country, but it is also true that the legal system is complicating rather than resolving the issue.

The construction industry suffers while the controversy makes its slow, torturous way through the courts.


Supreme Court Action Create Uncertainty on Water Rule, Pam Radtke Russell, ENR, Jan. 29, 2018.


Don Wallis has more than 40 years experience in residential and commercial construction, and land development. He also has a law degree and currently teaches Environmental Law at Santa Fe Community College.