In the Federal Regsiter today,
US EPA offiically added a new applicability date of February 6, 2020 to the 2015 Waters of the United States or WOTUS Rule, which is currently undergoing recodification. UPDATED 02/01/18: After the Supreme Court effectively lifted a nationwide ban on enforcement of EPA's 2015 Waters of the United States or WOTUS Rule, on January 31 EPA Administrator Scott Pruitt officially signed a rule to delay the new Clean Water Act standard until 2020.
This week, the US Supreme Court decided unanimously not
to take up a challenge to EPA’s 2015 Waters of the United States, or WOTUS, Final Rule. Instead, the Court held that challenges to the Final Rule—which expanded the Agency’s authority to enforce the Clean Water Act by more broadly interpreting the term “navigable waters”—must be brought in district courts.
This means that future challenges to EPA’s WOTUS Final Rule may be filed and taken up in any or all of the nation’s ninety-four district courts. It also means that each of those ninety-four district courts could come to a unique conclusion about EPA’s rule.
Background on EPA’s WOTUS Final Rule
The Supreme Court’s WOTUS decision is only the latest headline in an ongoing saga concerning US EPA’s attempts to broaden the applicability of Clean Water Act regulations. In September 2015, one day before the WOTUS Final Rule was to take effect, a Federal Judge in North Dakota issued an injunction to block the rule from taking effect in 13 states
until the court cases could be heard and settled.
The following month, the US Court of Appeals for the Sixth Circuit issued a nationwide Order of Stay on the WOTUS Final Rule,
effectively preventing EPA from enforcing the rule, pending the result of legal challenges.
EPA’s Reconsideration of WOTUS
As the Obama-era WOTUS Final Rule is tied up in courts, the current administration has already pledged to reconsider and recodify the Final Rule.
Reconsideration of the Final Rule came in response to an Executive Order
issued on February 28, 2017.
These are parallel efforts: As groups challenge EPA’s authority to enforce the 2015 Rule on administrative grounds in the courts, the new guard at EPA is working to replace the 2015 Rule with a (presumably) less expansive regulation of their own. A new Rule, of course, could lead to a new court battle, and so on.
What Does SCOTUS Decision Mean for Future of WOTUS?
The Supreme Court’s decision strikes down the Circuit Court’s nationwide stay, holding that district courts—not Appeals courts—are the appropriate venue for challenges to the WOTUS rule to be heard, based on Clean Water Act statute. Requiring the case to be taken up by district courts may open the door for regional or state-by-state injunctions to block EPA from enforcing the Final Rule.
The Supremes’ decision
was primarily a jurisdictional one. WOTUS watchers hoping for more insight into how EPA will define Waters of the United States in the future will not find it here. For that, we will have to wait until US district courts to have their say or until EPA proposes a new WOTUS rule later this year, as expected.
What Is the WOTUS Rule?
How EPA defines “waters of the United States” is critical to enforcement of the nation’s water laws. This definition tells the regulated community which bodies of water—oceans, lakes, rivers, streams, creeks, swamps, and more—are subject to the requirements of the Clean Water Act.
The definition of WOTUS impacts the way EPA enforces the myriad Clean Water Act programs: Oil spill notification (40 CFR 110), SPCC Plans (40 CFR 112), NPDES permitting and stormwater discharges (40 CFR 122), the per-industry standards at 40 CFR 405–471, and dredge and fill permitting (33 CFR 323).
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