On Friday, barring a last-minute judicial intervention, hundreds of millions of acres of land across the country will fall under Obama administration’s broad new Clean Water Rule, which defines “waters of the U.S.” to include virtually any wet area — even a rain-fed temporary pool — that is close to any other body of water with a physical connection to a navigable waterway. Waters of the U.S., or WOTUS, is likely to become a rallying cry for landowners who resent the administration’s attempts to steadily expand the limits of federal jurisdiction.

 

The Clean Water Rule already has spawned a dozen lawsuits and almost certainly will wind up before the U.S. Supreme Court, which limited federal jurisdiction over inland wetlands in a 2006 decision that ironically provides the legal underpinnings for the new rule. The Obama administration seized upon a term in Justice Anthony Kennedy’s concurrence to the 5-4 opinion in Rapanos v. U.S., “significant nexis,” to assert automatic control over almost any body of water whose molecules might wind up in a navigable waterway.

 

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