In an attempt to bring clarity following the recent Supreme Court decision—which as noted in our prior post will result in expiration of the nationwide stay of the 2015 revised definition of “waters of the U.S.” that was imposed two years ago by the Sixth Circuit Court of Appeals—EPA and the Army Corps of Engineers (Corps) issued a final rule extending the applicability date of the 2015 revised definition to February 6, 2020. With this final rule, the Agencies seek to ensure that the pre-2015 “waters of the U.S.” definition will remain in place consistently throughout the country while the Agencies consider possible revisions. As expected, the final rule has already been subject to judicial challenge, further ensuring that the scope of “waters of the U.S.” will continue to remain uncertain in the near future as these challenges play out.
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WOTUS
Definition of “Waters of the U.S.” Remains Uncertain
On January 22, 2018, the Supreme Court in a unanimous decision threw the long contested issue of what constitutes “waters of the U.S.” back to the lower courts. Somewhat surprisingly, the Supreme Court held that federal district courts have jurisdiction to hear challenges to the rule, reversing a Sixth Circuit decision and suspending that court’s nationwide stay of the rule. In doing so, the Court guaranteed that a revised definition of “waters of the U.S.” will remain undecided for some time to come.
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Stakeholder Meetings Scheduled for Revised Waters of the U.S. Rule
The EPA and the Army Corps of Engineers (Corps) announced a series of public teleconferences for stakeholder input on recommendations to revise the definition of “Waters of the United States” under the Clean Water Act. This definition is critical to the determination of whether wetlands or water discharge permits are required for construction projects or operations across all industries. In total, there will be ten teleconferences beginning on September 19, 2017, nine of which will be tailored to a specific industry sector and one of which will be open to the public at large (see summary below). The session specific to the energy, chemical and oil and gas industries is scheduled for October 24, 2017. The teleconferences will run throughout the fall on Tuesdays from 1 to 3 pm eastern. …
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EPA and the Corps Take Steps to Revise “Waters of the U.S.” Definition
EPA and the Army Corps of Engineers (the Corps) issued a prepublication version of a proposed rule that will rescind prior 2015 revisions to the definition of “waters of the U.S.” under the Clean Water Act (CWA), pending the issuance of a more substantive rulemaking that reevaluates the definition. The prior revisions expanded federal jurisdiction over certain waters and prompted numerous judicial challenges and a subsequent nationwide stay of the rule.
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Trump Order Compels EPA and Corps Review of Waters of the US Rule
President Trump signed an Executive Order requiring EPA and the U.S. Army Corps of Engineers to review the final “Clean Water Rule,” also known as the Waters of the United States (WOTUS) Rule. The Order requires that the review ensure that the WOTUS Rule is consistent with a new policy to keep the Nation’s navigable waters free from pollution “while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles played by Congress and the States under the Constitution.” Although implementation of the Rule was stayed by the U.S. Court of Appeals for the Sixth Circuit pending further court review, the Executive Order also requires EPA and the Corps to review all orders, rules, regulations, guidelines, or policies implementing the Rule and to revise or rescind such rules consistent with the Executive Order.
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