Water Expert WitnessIntroduction:

In 2015, the Environmental Protection Agency (EPA) released its final statement that defined the term “waters of the United States” (WOTUS). See, e.g., Environmental Protection Agency, “Clean Water Rule Litigation Statement,” Oct. 123, 2016, at https://www.epa.gov/cleanwaterrule/clean-water-rule-litigation-statement (last visited Jan. 18, 2017). This definition was intended to pertain to the Clean Water Act (CWA), and it has been hotly debated in our nation’s courts. See, e.g., McGuireWoodsLLP, “Clean Water Act’s WOTUS Rule: Summary and Updates,” Apr. 18, 2016. The litigation that has ensued on this matter is still not settled, which means that expert witnesses will play a crucial role in the court cases concerning the WOTUS definition.

Discussion:

According to the EPA in its final rule, WOTUS encompasses quite a bit, from interstate wetlands to territorial seas. See Clean Water Rule: Definition of “Waters of the United States,” 40 CFR 230.3, (published in the Federal Register on June 29, 2015). The agency’s broad definition has sparked both controversy and questions in the legal realm. See McGuireWoodsLLP, supra.

Not only have the challenges to the definition of WOTUS been raised in federal district court, but two appellate courts have ruled on the matter as well: the Sixth Circuit and the Eleventh. See id. Moreover, new questions have arisen with the office of the President changing hands in a matter of days, and many analysts have suggested that that transition will also affect how the term WOTUS is interpreted. See, e.g., Jones Day, “Energy and Environmental Ramifications of the Trump Election,” Nov. 17, 2016. Moreover, legal commentators have noted that Donald Trump had made clear that his plan is to “[e]liminate the Waters of the U.S. Rule.” Id. Regardless of whether that occurs, challenges to the definition of WOTUS under the Clean Water Act are apparently on the rise. As one analyst whimsically claimed with respect to this matter, even the United States Supreme Court is getting involved, as “WOTUS goes to SCOTUS.” Jonathan H. Adler, “WOTUS goes to SCOTUS,” The Washington Post, Jan. 14, 2017.

Regardless of the Supreme Court’s ruling, which is not expected until June of this year, other courts have resolved this matter in a variety of ways. See, e.g.,id. Considering that there may be additional litigation on the matter in general, and certainly in the Supreme Court, various groups on both sides are scrambling to join the legal battle. See, e.g., id.

Conclusion:

What all of this means is not entirely clear, but one thing is: expert witnesses are and may well continue to be the “go to” people for attorneys on both sides of these issues. In particular, parties will seek out environmental and environmental-impact litigation experts, experts on water issues and the CWA, and experts on governmental and administrative policy. Each of these expert witnesses will play an indispensable role in helping to define the term “WOTUS” and to aid both litigators and courts in so doing.

 

By: Kat S. Hatziavramidis, Attorney-at-Law