The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the “Corps”) (together the “Agencies”) have continued working on a proposed rule to revise the definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA or Act), which will soon move to the next stage of agency consideration. The outcome of these rulemaking efforts will impact countless regulated parties, from solar developers to manufacturers, and heavily regulated industry.
On January 23, 2020, the Environmental Protection Agency and U.S. Army Corps of Engineers (collectively, “Agencies”) released the pre-publication version of the much-anticipated final rule narrowing the meaning of the term “waters of the United States,” which defines waters subject to federal jurisdiction under the Clean Water Act (“CWA”). The final rule, called the “Navigable Waters Protection Rule,” represents the latest development in the Trump Administration’s extensive effort to repeal and replace the Obama Administration’s 2015 rule redefining the term (“2015 Rule”) and will become effective 60 days after its publication in the Federal Register.
The “repeal rule” will take effect December 20, 2019, providing nationwide consistency regarding the jurisdiction of Waters of the U.S. and ending the current state-by-state patchwork of where the 2015 Clean Water Rule is in effect. As of December 20, the regulatory interpretation of Waters of the U.S. in place prior to the Clean Water Rule will be the basis for determining jurisdiction.
This is the final act for the first step in a repeal and replace process, with EPA and the Corps continuing to work on a new Waters of the U.S. rulemaking which they expect to publish early in 2020.
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. Continue Reading EPA & Army Corps Request Voluntary Dismissal of Their WOTUS-Related Appeal
The Trump Administration’s proposed rule regarding the definition of Waters of the United States under the Clean Water Act (“WOTUS Rule”) was published yesterday in the Federal Register. The EPA and U.S. Army Corps of Engineers will receive comments on the proposal until April 15, 2019. As covered in a previous blog post, a pre-publication version of the proposed rule was initially released in December 2018, which is substantively the same as the version published yesterday.
On December 11, 2018, the Environmental Protection Agency (“EPA”) and the Department of the Army (“DOA”) (“Agencies”) released their much-anticipated Notice of Proposed Rulemaking (“Proposed Rule”), which if adopted would scale back the jurisdictional reach of the Clean Water Act (“CWA”) by narrowing the definition of “Waters of the United States” (“WOTUS”) to include only those waters that are oceans, rivers, streams, lakes, ponds, and wetlands, and their “naturally occurring surface water channels.” The practical implications for project proponents of the Proposed Rule are that ephemeral streams and many ponds and ditches used in agricultural, industrial and construction activities would no longer be within the jurisdictional reach of the CWA, alleviating the requirement for and uncertainty surrounding permitting requirements and related mitigation measures. The next step in the Proposed Rule’s process is publication in the Federal Register, after which the Agencies will accept public comments on the proposal until 60 days after Federal Register publication.
The Trump administration is expected to announce a new proposed definition of “waters of the United States” (WOTUS) which would reverse the expansions adopted under the Obama administration’s controversial WOTUS rule, significantly narrowing the number of waterways and wetlands that fall within the jurisdictional scope of the Clean Water Act (CWA).
Continue Reading Trump Administration to Propose Narrowing “WOTUS”
Last Thursday, in South Carolina Coastal Conservation League v. Pruitt, South Carolina Federal District Court Judge Norton issued an order which made the Waters of the United States (WOTUS) Rule take effect in twenty-six states. As background, the CWA prohibits discharges to WOTUS without a permit, but does not define the term. In 2015, the Obama Administration finalized the WOTUS Rule, which applied an expansive meaning to the term to broaden federal jurisdiction. In October 2015, the Sixth Circuit delayed the effective date of the WOTUS Rule pending judicial review. In January 2018, the Supreme Court concluded its review and ordered that the Sixth Circuit, among other actions, lift its stay of the Rule. In order to delay the implementation of the WOTUS Rule, the Trump Administration responded with yet another rulemaking – referred to as the “Suspension Rule” – which delayed the effective date of the WOTUS Rule by two years while the Administration considered a replacement for the Obama-era WOTUS Rule.
Last week, the Center for Biological Diversity, Water Keeper Alliance, and a coalition of other organizations served a Notice of Intent to Sue the U.S. EPA and Army Corps of Engineers (the “Agencies”), alleging the Agencies’ delay in implementing the Obama-era Waters of the U.S. (“WOTUS”) Rule violated the Endangered Species Act.
Earlier this week, the Supreme Court ruled that federal district courts, rather than appellate courts, are the proper venue to challenge the “Waters of the United States” (“WOTUS”) Rule (discussed in a previous blog post here), an Obama-era regulation that expansively defined waters subject to Clean Water Act jurisdiction. Following the Supreme Court decision, the Eleventh Circuit on Wednesday vacated its 2015 decision which held the opposite. In doing so, it also remanded a challenge to the WOTUS Rule brought by a coalition of states (led by Georgia) in 2015 in the federal district court in Brunswick, Georgia.