On March 8, 2019, the Environmental Protection Agency, Department of the Army, and Army Corps of Engineers petitioned the U.S. Courts of Appeals for the 4th and 9th Circuits to voluntarily dismiss their appeals of the Suspension rule. This is yet another development in the litigation surrounding the 2015 Waters of the United States Rule (WOTUS). Our previous blog posts on this topic can be accessed here.
As a refresher, the Environmental Protection Agency and Department of the Army issued the Suspension rule, sometimes referred as the Applicability rule, in February 2018. The rule delayed the implementation of the 2015 WOTUS rule for two years, until February 2020. The rule was challenged shortly thereafter, and when one court in South Carolina and another court in Washington struck it down, the federal government appealed. Right around that time, the Environmental Protection Agency and Department of the Army opened additional public comment period for the 2015 WOTUS rule repeal. (The comment period closed in August 2018.)
Due to litigation in multiple federal district courts, the 2015 WOTUS rule is effective in about half of states, whereas the other half follow the previous rule. The defeat of the Suspension rule means that this patchwork will remain until a new WOTUS rule is finalized or the ongoing challenges to the 2015 WOTUS rule conclude.
Federal petitioners explain that their voluntary dismissal is driven by the “need to provide clarity, certainty, and consistency nationwide” and focus agency efforts on finalizing the proposed rule announced in December 2018 and published in February 2019. The EPA has been spending its resources on reviewing hundreds of public comments received in August 2018. Many more comments on the proposed rule will be inevitably filed by April 2019. Moreover, the government shutdown at the end of 2018, lasting over a month, has contributed to the agency’s increased workload. This action also comes at a time when the President, for the second year in a row, has proposed significant budgetary cuts to the Environmental Protection Agency’s budget for next year. EPA has been already operating on a reduced budget in 2019.
Federal petitioners also asked a district court in New York, where the state’s and non-profit organization’s challenges to the Suspension rule are pending, to consider plaintiffs’ claims as moot and dismiss them, in light of the above circuit court filings.