July 25, 2017

White House WOTUS update

By M. Reed Hopper Senior Attorney

We reported here that the Administration had proposed withdrawing the 2015 WOTUS rule as directed by Executive Order. And, that EPA would soon be issuing a new rule defining “waters of the United States” under the Clean Water Act. According to a recent statement by the Office of Information and Regulatory Affairs, the EPA will issue a Notice of Proposed Rule-making in December, 2017, along the lines of Justice Scalia’s opinion in Rapanos v. United States. A formal draft will follow and a final rule adopted, probably in 2018. Under the Congressional Review Act, Congress will have an opportunity to accept or reject the new rule before it goes into effect.

Like the controversial 2015 WOTUS rule, the new rule will likely be challenged upon publication. If one or more courts stay the rule, it may be months or years before it is implemented. In the meantime, the Administration is relying on the existing regulatory definition of “navigable waters” or “waters of the United States” as modified by certain guidance documents issued over a decade ago. We point out some of the pitfalls to that approach here and suggest an approach to the new rule.

While the Administration deals with the rule-making, the Supreme Court is poised to address the proper venue for challenging any rule defining “waters of the United States.” The issue is important because the courts are split on whether such challenges should be brought initially in federal district court or directly in a circuit court of appeals. We filed our opening brief in the case in April. The government response is due July 28 and oral argument is set for October 11. We may see a decision from the High Court before the end of 2017.

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Waters of the United States

In 2015 PLF challenged the Environmental Protection Agency’s proposed rule to stretch federal control to nearly every pond, ditch, and puddle in the nation as nothing more than an outrageous—and illegal—power grab under cover of the Clean Water Act. And under the Act, people who are harmed by such rules have six years to sue in federal district court. That is, until the EPA rewrote the rule, trying to prevent legal action by giving property owners just 120 days to sue, and then only in federal appellate courts. On January 22, 2018, the U.S. Supreme Court rejected the EPA’s power play and unanimously ruled for PLF and property rights. The High Court agreed with PLF that the EPA cannot shelter its “waters of the United States” rule from judicial review by arbitrarily limiting where victims can sue.

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