Special Topics in Environmental Management

Stop-WOTUS Proposal Issued

Stating that they wish to ensure regulatory continuity and certainty, the Trump EPA and Army Corps of Engineers (Corps) have issued another proposal in their campaign to eliminate the Obama administration’s June 2015 final rule defining the Clean Water Act (CWA) term, waters of the United States (WOTUS rule). The current proposal would delay the effective date of the WOTUS rule until 2 years after the proposal is made final. The EPA and Corps note that the proposal is a necessary step to ensure that the WOTUS rule will not take effect when the U.S. Supreme Court issues an opinion to resolve a dispute over whether the U.S. district courts or the U.S. appeals courts have jurisdiction to hear suits involving the rule.

Two-step Rulemaking

Less than 1 month after taking office, President Donald Trump issued an Executive Order directing the EPA and the Corps to review and revise or repeal the WOTUS rule, which was a joint product of those two agencies. Subsequently, the agencies announced that they would undertake a two-step rulemaking. In July, the agencies issued their step-one proposal to rescind the definition in the WOTUS rule and reinstate the far narrower definition that existed before the rule. The comment period for that proposal has closed, and the EPA/Corps note that the “great national interest” in the WOTUS definition prompted over 680,000 public comments. The agencies also announced that they will issue a step-two proposal in which they will solicit public comment before a substantive reevaluation of the WOTUS definition.

Jurisdiction

Apart from and before these action, states and industry sued in federal courts to block the WOTUS definition from taking effect. The suits were successful. In September 2015, one district court issued an order granting a motion for preliminary injunction against the rule; the injunction was effective in 13 states.Several weeks later,the U.S. Court of Appeals for the 6th Circuit stayed the 2015 rule nationwide pending further action by the court. The U.S. Supreme Court has heard arguments over whether the district courts or the appeals courts have the jurisdiction to decide on the legality of the WOTUS rule.

Avoiding Confusion

The EPA notes that the Supreme Court could issue its decision at any time. Absent the current proposed delay, such a ruling could create considerable confusion. The EPA explains:

“If, for example, the Supreme Court were to decide that the Sixth Circuit lacks original jurisdiction over challenges to the 2015 Rule, the Sixth Circuit case would be dismissed and its nationwide stay would expire, leading to possible inconsistencies, uncertainty, and confusion as to the regulatory regime that could be in effect pending substantive rulemaking under the Executive Order.

“In addition, if the Supreme Court were to decide that the courts of appeal do have original jurisdiction over challenges to the 2015 Rule, the litigation in the Sixth Circuit could resume and therefore control over which regulatory definition of ‘waters of the United States’ is in effect while the agencies engage in deliberations on the ultimate regulation could remain outside of the agencies.”

Retaining Past Definition

According to the agencies, the proposed delay would establish a clear regulatory framework that could avoid the possible inconsistencies, uncertainty, and confusion that could result from a Supreme Court ruling while the agencies reconsider the 2015 Rule.

“It would ensure that, during this interim period, the scope of CWA jurisdiction will be administered exactly the way it is now, and as it has been for many years prior to the promulgation of the 2015 Rule,” state the EPA/Corps.

Given the possibility that a Supreme Court decision could arrive any day, the agencies will be accepting public comments for only 21 days upon publication of the delay proposal in the FR.

The proposal was published in the November 22, 2017, FR.

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