The Swamp Stomp

Volume 15, Issue 35

The new Waters of the US (WOTUS) rules went into effect last week. Well they sort of did. On August 27, 2015, one day before the rules were set to take effect, two WOTUS rules federal court cases where decided. One supported the rules and one did not.

United States District Courts in Georgia and West Virginia agreed with the Agencies that legal challenges to the Rule could only be brought in the United States Court of Appeals for the 6th Circuit and therefore denied the requests for preliminary injunction. Therefore the rule stands and can move ahead on August 28, 2015.

The District Court for North Dakota found that it had jurisdiction and granted the request of a number of States and issued a decision preliminarily enjoining the Clean Water Rule. Under the order issued by the Court, the parties that obtained the preliminary injunction are not subject to the new rule, and instead continue to be subject to the prior regulation. In light of the order, EPA and the Army Corps of Engineers will continue to implement the prior regulation in the following 13 States: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.

The decision of the District Court was that the WOTUS rule is a risk to state sovereignty because it asserts federal jurisdiction over wetlands and waters that would normally be subject to state government regulation. In this case, the District Court determined that the states were likely to succeed on the merits as the EPA had adopted an “exceptionally expansive” view of its own jurisdiction under the Clean Water Act. According to the court, the WOTUS rule “allows EPA regulation of waters that do not bear any effect on the ‘chemical physical, and biological integrity’ of any navigable-in-fact water,” and therefore exceeds the limits on federal regulatory authority identified by the Supreme Court in Rapanos.

There was and perhaps still is a lot of confusion about whether the remaining 37 states are still required to abide by the new WOTUS rule. EPA has been leading the charge on the rule and thus far provided no written guidance as a result of the Court’s ruling. However, a number of media sources including the NY Times, The Wall Street Journal, The Washington Post, The Hill, AP, and Reuters cite an EPA representative as a source. Some name the EPA spokesperson, some do not. So far there has been nothing formally published in the form of an official new release from EPA. The following is from the Wall Street Journal as quoted in The Hill.

“The Clean Water Rule is fundamental to protecting and restoring the nation’s water resources that are vital for our health, environment, and economy,” EPA spokeswoman Melissa Harrison said. “EPA and the Department of the Army have been preparing to implement the rule on the effective date of August 28.”

The preliminary injunction, Harrison said, applies only in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

“In all other respects, the rule is effective on August 28,” she said. “The agencies are evaluating these orders and considering next steps in the litigation.”

The Army Corps of Engineers posted an announcement on the headquarters website the following guidance.

“In light of the order, EPA and the Army Corps of Engineers will continue to implement the prior regulation in the following States: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.”

“In all other States, the new Clean Water Rule is effective on August 28.”

I am not sure if a web post counts as guidance, but it is all we have to work with. The last published Corps Regulatory Guidance Letter (RGL) was in 2008. Now would be a good time to issue a new one. Permit decisions need to be made. I am not sure a web post under “latest news” meets the legal requirements of an interpretation of law.

Keep an eye on the EPA news release site as well as the Corps regulatory pages. It is safe to assume that the new rules will be enforced outside of the 13 dissenting colonies. Sorry I meant states. Does anyone else see the irony here?