The Swamp Stomp
Volume 18, Issue 50
In the last several months there have been a series of court rulings that have changed what constitutes a Waters of the US (WOTUS). Ironically, the reason for the change relates to the manner in which the change was announced. What makes it ironic, is that the judges who have ruled against the Trump Administration’s 2015 WOTUS Rule delay have have done so on the basis that the public needed more time to absorb and comment on the delay. These judges’ orders have had an immediate effect which seems a bit hypocritical given the reasons for the rulings.
When the Clean Water Rule was implemented in 2015, a partial and the then a nationwide stay of the Rule was ordered by the 6th District Court. Knowing that this three-year stay would be lifted this year, the Trump administration issued a regulation that imposed an additional 2-year postponement on the implementation of the 2015 Clean Water Rule. There was a brief public comment period and the delay became effective this past spring. Shortly thereafter the 6th Circuit stay was lifted.
This past August, a South Carolina Federal judge ruled that the Trump delay of the 2015 Clean Water Rule violated the Administrative Procedures Act (APA) and that the public should have had more time to comment on the delay rule. Please note that the Trump rule was simply a delay of the implementation of the published rule. Apparently, the public needed more time to absorb the impact of what an additional 2-year delay on a rule that already had been delayed for the previous 3 years would be. This seems a bit silly but as the South Carolina Federal Judge noted in his decision, “What is good for the goose is good for the gander.” This was in reference to all of the Obama era APA violations. It seems to be a possible political payback.
Shortly thereafter, District judges in Texas, Georgia and North Dakota have prohibited the South Carolina Judges’ rule from being applied in 28 states. The remaining 22 states are currently subject to the Obama era rules. The EPA has put together a pretty nice map of this as shown below.
About a week ago, a Washington State Federal judge reinstated the 2015 Obama era rules nationwide. However, this was in direct conflict with the previous Federal Judges’ prohibition on implementing the rules. It is a bit unclear if the rules are in effect nationwide. However, it seems that the previous Texas, Georgia and North Dakota judges’ decisions remain valid for now. So as shown on the EPA map, 28 green states are not subject to the 2015 rule and the 22 blue states are.
This week should prove interesting as the Trump administration has announced that it will be releasing its own Waters of the US definition. This would replace the 2015 Rules. It is expected that this would go into effect sometime before the summer of 2019. The Trump rules would follow the Scalia decision from the Rapanos Supreme Court decision of 2006. This would require jurisdictional aquatic resources to be physically connected to commerce waters. This is a divergence from the Kennedy decision of said same case that required a significance nexus that could also include chemical and biological connections to commerce waters. One can assume that the Scalia test would result in less areas being defined at the Federal level as jurisdictional aquatic resources as it only allows for a physical connection.
We will have more about this in upcoming newsletters and our annual Wetland Status and Trend Webinar in January.