Aug 3, 2017

EPA to Clarify Definition of “Waters of the United States” (WOTUS)

The U.S. Environmental Protection Agency (EPA) and the Department of the Army Corps of Engineer published in the Federal Register a proposed rule on July 27, initiating the first step in a two-step process intended to review and revise the definition of "waters of the United States," (WOTUS), which defines the scope of the Clean Water Act (CWA). The proposal would retract the broad WOTUS definition issued by EPA and the Army Corps of Engineers in 2015.

During the 2014-2015 rulemaking process, ACA opposed EPA and the Army's efforts to dramatically expand the scope of federal authority over water and land uses across the United States.

Because of the expanded WOTUS definition, the federal government was given jurisdiction over some of the smallest waterways in the country. On Feb.28, 2017, President Trump signed an executive order, "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule," to begin the process to return to the previous WOTUS definition.

The agencies' initial step proposes to apply the definition of WOTUS as it is currently being implemented, that is informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding practice. According to EPA, "proposing to re-codify the regulations that existed before the 2015 Clean Water Rule will provide continuity and certainty for regulated entities, the States, agency staff, and the public."

In a second step, the agencies will pursue notice-and-comment rulemaking in which the agencies will conduct a substantive re-evaluation of the definition of WOTUS.

While EPA undertakes that effort, the U.S. Supreme Court will hear arguments in the case on Oct. 11. The nation's highest court will consider whether a federal district rather than an appeals court should hear challenges to the 2015 WOTUS Rule.

On Oct. 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed the updated WOTUS rule. The decision was the result of several lawsuits consolidated into a multi-district case, including suits brought against EPA challenging the rule by Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah, Wisconsin, Oklahoma, Ohio, Michigan, Texas, Louisiana and Mississippi, as well as the U.S. Chamber of Commerce, the American Farm Bureau Federation, and the American Petroleum Institute.

The appellate decision followed just weeks after Judge Ralph Erickson of the U.S. District Court for the District of North Dakota granted a preliminary injunction for 13 states on Aug. 27, 2015, to prevent the rule from taking effect Aug. 28. Those 13 states — Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, North Dakota, South Dakota and Wyoming — argued that EPA went outside its authority because the final rule violates state sovereignty, asserting jurisdiction over waters that are subject to state rather than federal control.

Those states prevailed because they sufficiently demonstrated that their claim is likely to succeed on the merits and that the states would suffer irreparable harm without injunctive relief. "The risk of irreparable harm to the states is both imminent and likely," Erickson was quoted in the Washington Post, and noted that the rule would require "jurisdictional studies" of every proposed natural gas, oil or water pipeline project in North Dakota.

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