Original Message:
Sent: 07-17-2018 14:47
From: Natalie Mamerow
Subject: Waters of the U.S. (WOTUS)
In its latest maneuver in the complex litigation over the contentious Clean Water Rule, the Trump administration is arguing it makes little sense for courts to weigh the legality of the Obama-era regulation.
Government lawyers argued in a brief filed in North Dakota district court that the courts should instead allow EPA and the Army Corps of Engineers to finish reconsidering the regulation before weighing in on whether the Obama version is lawful.
The Obama administration issued the rule - also known as Waters of the U.S., or WOTUS - in 2015 to clarify which wetlands and streams receive automatic protection under the Clean Water Act.
After the rule received massive pushback from states, farmers and industry, the Trump administration began a process to repeal and replace it with a version that covers fewer bodies of water (E&E News PM, June 29).
"The rulemaking process - not litigation - is the best way forward," the Justice Department argued in the brief filed late yesterday in the U.S. District Court for the District of North Dakota.
But the stance puts the Trump administration at odds with a coalition of states that wants the North Dakota court to declare the Obama version of the rule illegal.
The action in North Dakota - where a federal judge agreed in 2015 to halt WOTUS in 13 states - is part of the continued fallout from the Supreme Court's unanimous January decision that challenges to the rule belong in federal district courts, rather than federal circuit courts (Greenwire, Jan. 22).
After the high court's decision, the Trump administration finalized a rule delaying the start date of WOTUS by two years, while a number of district courts restarted litigation that they had halted to allow circuit courts to take up challenges.
A Georgia federal judge in June granted states' request to halt the rule in 11 states, bringing the total number of states where WOTUS has been enjoined to 24. A Texas federal judge is meanwhile weighing a request to halt the rule nationwide.
Last month in North Dakota, the 13 states that successfully obtained a stay of the rule in 2015 asked the court to find WOTUS unlawful and permanently set it aside across the country.
Led by North Dakota, they argued that the rule violated the Clean Water Act and the Constitution, and that the agencies didn't follow proper rulemaking procedures. Republican Iowa Gov. Kim Reynolds filed a separate motion for summary judgment.
But the Trump administration, which had objected to even restarting the litigation, argued in its brief yesterday that the court doesn't need to get involved right now.
"The Agencies have proposed to take action that, if finalized, would eliminate the complex challenges this case raises," DOJ said. "This Court need not entangle itself in them; it should decline further involvement 'until an administrative decision has been formalized.'"
The government also refused to take any position on several issues raised by the states.
"The Agencies maintain an open mind," the brief said. "So, while the Agencies' prior briefs and statements (made at a time when the rulemaking posture was different) are a matter of public record, the Agencies take no current position on the substantive issues currently being reconsidered."
More broadly, DOJ defended President Trump's ability to change rules issued by prior administrations, a legal issue that's come up in myriad lawsuits regarding the Trump administration's deregulatory agenda.
The Trump administration has previously cited a 2009 split decision by the Supreme Court, FCC v. Fox Television Stations Inc., as legal grounds for repealing the Clean Water Rule.
In that case, the high court ruled that an agency can change a regulation without the move being considered arbitrary or capricious under the Administrative Procedure Act as long as it provides a "reasoned explanation" for the change (Greenwire, June 28, 2017).
"The Agencies have clear legal authority to reconsider the rules of prior administrations," DOJ's brief said.
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Natalie Mamerow Aff.M.ASCE
Senior Manager, Federal Government Relations
Washington DC
(202)789-7844
Original Message:
Sent: 07-02-2018 10:21
From: Natalie Mamerow
Subject: Waters of the U.S. (WOTUS)
The Trump administration is arguing that the Obama administration's Clean Water Rule did not successfully align itself with the vision of Supreme Court Justice Anthony Kennedy in defining which wetlands and small waterways are covered by the Clean Water Act.
In a "supplemental" proposal to repeal the 2015 regulation, EPA and the Army Corps of Engineers say stays issued on the regulation show that it does not comply with the "significant nexus test" Kennedy laid out in the 2006 case Rapanos v. United States.
It also argues that the Obama administration erred in relying on Kennedy's opinion in that case, arguing that Justice Antonin Scalia's opinion is the controlling decision.
Kennedy was the stand-alone vote in that famously muddled 4-1-4 Rapanos ruling. He argued that waters should be afforded federal protection if they have chemical, biological or hydrological connections - what he called a "significant nexus" - to larger downstream waterways.
Scalia, writing for the four conservative justices, said only waterways and wetlands with "relatively permanent" surface water connections to larger downstream waterways should be covered.
In particular, the Trump administration now says the Clean Water Rule strays from the "significant nexus" test in its treatment of so-called isolated wetlands.
The regulation says wetlands like prairie potholes, Delmarva and Carolina bays, pocosins, vernal pools in California, and Texas coastal prairie wetlands should be considered on a case-by-case basis but also as a system. In other words, regulators would asses the importance of an individual pothole on its own and also as part of the ecosystem, determining its impact on downstream waters in combination with other prairie potholes in the watershed.
Waters located within the 100-year floodplain of larger waters or within 4,000 feet of the high tide line would be treated similarly.
The Trump administration writes in its supplement that an expansive interpretation of the rule "could mean the vast majority of water features in the United States may come within the jurisdictional purview of the federal government."
"In the agencies' view, it would not be consistent with Justice Kennedy's Rapanos opinion or the Rapanos plurality opinion to regulate wetlands adjacent to all tributaries no matter how small or remote from navigable water," the proposal says.
It also argues that both Kennedy and Scalia agreed in their Rapanos opinions that the jurisdictional status of wetlands should be based on a two-part test that considers the proximity of wetlands to nearby tributaries and "the status of the tributary with respect to downstream traditional navigable waters."
Today's supplemental proposal provides a far more detailed reason for repeal than the initial proposal issued last year. Then, the administration focused on how court challenges to the Clean Water Rule created uncertainty for the regulated industry (E&E News PM, June 27, 2017).
The supplement comes just days after Kennedy announced his retirement from the Supreme Court. Legal experts expect his departure will likely clear the way for the Trump administration to issue a new definition of waters of the U.S., so long as it follows administrative law (Greenwire, June 28).
EPA Administrator Scott Pruitt said that by issuing today's proposal, the agencies "are making it clear that we are proposing to permanently and completely repeal the 2015 WOTUS rule and keep the pre-2015 regulatory framework in place as we work on a new, improved WOTUS definition."
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Natalie Mamerow Aff.M.ASCE
Senior Manager, Federal Government Relations
Washington DC
(202)789-7844
Original Message:
Sent: 06-15-2018 13:32
From: Natalie Mamerow
Subject: Waters of the U.S. (WOTUS)
By Annie Snider
06/15/2018 10:01 AM EDT
EPA and the Army will today send their proposed rewrite of the Obama administration's Waters of the U.S. rule to the White House for interagency review, the agency said in a statement.
The proposed rule is expected to define a much narrower set of waters and wetlands for protection under the Clean Water Act than has historically been the case. President Donald Trump signed an executive order in February 2017 directing the agencies to base their rewrite on the late Supreme Court Justice Antonin Scalia's opinion in a key case in which the justices split 4-1-4.
"Today, we are taking an important step toward issuing a new WOTUS definition and answering President Trump's call to ensure that our waters are kept free from pollution, while promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the federal government and the states under the statutory framework of the Clean Water Act," Pruitt said in a statement.
EPA has put separate rules in place to keep the Obama-era regulation on hold while it proceeds with efforts to repeal and rewrite it, and the ultimate outcome will likely be decided by the courts.
WHAT'S NEXT: OMB will coordinate interagency review of the proposed new definition of waters protected under the Clean Water Act, although it is unclear how long that process will take. A supplement to the proposed repeal rule has been sitting at the White House for review since April 11. Pruitt has said he intends to have the full repeal and rewrite process wrapped up by the end of the year.
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Natalie Mamerow Aff.M.ASCE
Senior Manager, Federal Government Relations
Washington DC
(202)789-7844
Original Message:
Sent: 06-11-2018 15:34
From: Natalie Mamerow
Subject: Waters of the U.S. (WOTUS)
A federal judge in Georgia on Friday granted 11 states' request for an order blocking implementation of the Obama administration's controversial Clean Water Rule.
Judge Lisa Godbey Wood of the U.S. District Court for the Southern District of Georgia agreed to halt the rule from taking effect in Georgia, Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, Utah, West Virginia, Wisconsin and Kentucky.
Wood wrote that the rule is likely unlawful and that the states would suffer irreparable harm absent an injunction.
"Once the rule takes effect, the states will lose their sovereignty over certain intrastate waters that will become subject to the scope of the Clean Water Act," Wood wrote. "Loss of sovereignty is an irreparable harm."
Complying with the rule would also likely cause states to lose money that can't be recouped, Wood added.
The rule is now halted in a total of 24 states. A North Dakota judge's 2015 injunction barring implementation of the rule in 13 states is still in place.
The new injunction, however, won't have any immediate consequences, as the Trump administration has already delayed the rule's implementation by two years.
Its significance instead is that it would serve as a backstop should courts knock down the two-year delay. Environmentalists and blue states are challenging the delay in federal courts in New York and South Carolina; both courts are considering motions for summary judgment.
The Obama administration issued the 2015 Clean Water Rule - also known as the Waters of the U.S., or WOTUS, rule - spelling out which wetlands and streams receive automatic protection under the Clean Water Act. The joint EPA-Army Corps of Engineers rule was an attempt to provide clarity after years of uncertainty following the Supreme Court's fractured decision in the 2006 case Rapanos v. United States.
Multiple parties challenged the rule in courts around the country, and early this year, the Supreme Court ruled that lawsuits belong in federal district courts. Following the unanimous high-court ruling, the 11-state coalition renewed calls for an injunction blocking the rule.
Wood, a George W. Bush appointee, held a May 31 hearing on the motions. In her opinion Friday, she wrote that the states had "demonstrated a likelihood of success" on their claims that WOTUS violated both the Clean Water Act and the Administrative Procedure Act.
WOTUS, the judge wrote, "likely fails to meet" the so-called "significant nexus" test that Justice Anthony Kennedy laid out in the 2006 Rapanos decision. Kennedy wrote that federal agencies have jurisdiction over waters that have a significant nexus to navigable rivers and seas, including through biological or chemical connections.
"The WOTUS rule asserts jurisdiction over remote and intermittent waters without evidence that they have a nexus with any navigable-in-fact waters," she wrote.
Wood also said that the states were likely to prevail in their claims that the rule was arbitrary and capricious and issued in violation of proper rulemaking procedures. She wrote that the final rule was likely not a "logical outgrowth" of the proposed version.
The Trump administration, which wants to replace WOTUS with a version covering fewer water bodies, had asked Wood to hold the motions for preliminary injunction in abeyance until courts decide on the legality of the delay rule.
Wood wrote, however, that she was "satisfied that the states have gone as far as the law requires in showing that irreparable harm is likely and sufficiently imminent."
Blan Holman, managing attorney at the Southern Environmental Law Center, which is involved in legal challenges against the Trump administration regarding the WOTUS rollback, expressed disappointment in the decision.
"This decision is an unfortunate result of [EPA] Administrator Scott Pruitt's attack on America's existing clean water protections, which the court cites as a reason to freeze the Clean Water Rule," Holman said. "We are fighting Administrator Pruitt's attacks on clean water and are considering all options in response to this decision."
A federal judge in Texas is considering similar preliminary injunction motions filed by a separate state coalition, farm organizations and other industry groups.
Stephanie Genco, a spokeswoman for a coalition of WOTUS opponents arrayed under the Waters Advocacy Coalition, said the decision was a "validation" for farmers, ranchers and small business owners.
"Americans deserve a common-sense WOTUS rule that doesn't require a team of lawyers and consultants to navigate a maze of federal regulations before building on their own property or plowing a field on their farms," she said. "While the 2015 rule is now stayed in 24 states all together, the other half of the country is still in limbo."
Click here to read Wood's opinion.
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Natalie Mamerow Aff.M.ASCE
Senior Manager, Federal Government Relations
Washington DC
(202)789-7844
Original Message:
Sent: 05-16-2018 12:18
From: Natalie Mamerow
Subject: Waters of the U.S. (WOTUS)
By Annie Snider
05/16/2018 11:42 AM EDT
EPA Administrator Scott Pruitt said his efforts to repeal and replace the Obama administration's Waters of the U.S. rule remains on track to be completed by the end of the year, despite a White House listing suggesting it had slipped.
Pruitt told a Senate Appropriations panel this morning that he plans to finalize the withdrawal of the Obama-era rule in the third quarter of this year, with a final replacement rule in place "by the end of the year."
The proposed rewrite rule will be released for public comment "late this month or early next month," he said, even though the rule has not yet been sent to the White House for interagency review. The proposal is expected to drastically reduce the number of streams and wetlands across the country that are protected under the Clean Water Act - the type of major regulation that often spends weeks undergoing White House review.
The timeline Pruitt described today is the same one he has been discussing for months, although the White House's Unified Agenda recently changed the expected time frame for the rules, with the rewrite rule not listed there for proposal until August and the final version not scheduled until September of 2019.
------------------------------
Natalie Mamerow Aff.M.ASCE
Senior Manager, Federal Government Relations
Washington DC
(202)789-7844
Original Message:
Sent: 05-09-2018 14:53
From: Natalie Mamerow
Subject: Waters of the U.S. (WOTUS)
By Annie Snider
05/09/2018 02:28 PM EDT
EPA is pushing back its timeline for rewriting the Obama administration's controversial water rule by several months, with a final version now not expected until September 2019.
Administrator Scott Pruitt has promised that a proposed version of the rule, which would narrow the definition of which streams and wetlands are protected under the Clean Water Act, would come out this month. But according to the White House's new Unified Agenda, a proposed Waters of the U.S. rule isn't expected until August, pushing back the final version.
Last month, Pruitt told the House Energy and Commerce Committee that the administration's work on the issue - including both the repeal and the rewrite - would be done by the end of the year.
The agenda also indicates that a supplement to the agency's proposal to repeal the Obama administration rule, which is currently being reviewed by the White House Office of Management and Budget, will come out this month. That rule is then due to be finalized in November, according to the agenda.
WHAT'S NEXT: EPA says a supplement to its proposal to rescind the controversial Obama administration Waters of the U.S. rule will come out this month.
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Natalie Mamerow Aff.M.ASCE
Senior Manager, Federal Government Relations
Washington DC
Original Message:
Sent: 05-01-2018 15:43
From: Natalie Mamerow
Subject: Waters of the U.S. (WOTUS)
EPA Administrator Scott Pruitt may have offered clues in a House subcommittee hearing last week about what wetlands and waterways will get Clean Water Act protection in his agency's planned overhaul of the Waters of the U.S. rule.
With the rule - best known by its acronym, WOTUS - expected to be released this month, Pruitt went off his usual script on WOTUS in response to a question from Rep. Jeff Duncan (R-S.C.) about jurisdictional determinations on whether individual wetlands are regulated.
Jurisdictional determinations "have been so inconsistent, so different in certain parts of the country that ephemeral drainage ditches, dry creek beds, puddles, prairie potholes in North Dakota, you know, are considered waters of the United States, which I believe, looking at the text of the Clean Water Act, clearly was not within the intent of Congress," he said.
Pruitt has often inaccurately claimed the Obama administration's Clean Water Rule would have regulated puddles, dry creek beds and ephemeral drainage ditches (Greenwire, Aug. 21, 2017).
Adding prairie potholes to that list for the first time Thursday, Pruitt signaled the marshy glacial depressions in the upper Midwest won't be protected under the upcoming WOTUS rule.
"He tipped his hand" on prairie potholes, said Betsy Southerland, the former director of science and technology in EPA's Office of Water. She resigned last summer to protest the Trump administration's science policies (Greenwire, Aug. 1, 2017).
An EPA spokeswoman said she is unable to answer questions on the WOTUS rewrite, saying EPA and the Army Corps of Engineers were still working on it.
The Obama-era Clean Water Rule was halted by the courts and Trump administration rulemakings and never went into effect nationwide. But its handling of prairie potholes was a political flashpoint for the regulation's industry foes.
Prairie potholes aren't connected by flowing surface water to rivers or streams, but ecologists say their separation from larger tributary networks makes them especially valuable as breeding grounds and habitat for more than half of North America's waterfowl.
But prairie potholes are also prime farmland and in energy-rich areas in North Dakota important to Bakken Shale development.
The Obama administration's Clean Water Rule didn't explicitly assure the protection of prairie potholes, but it made it likely. It placed prairie potholes in a category with other "isolated wetlands" like Delmarva and Carolina bays, pocosins, vernal pools in California and Texas coastal prairie wetlands.
The Obama rule directed regulators to consider such wetlands on a "case by case basis" but also as a system. In other words, regulators would assess the importance of an individual pothole on its own and also as part of the ecosystem, determining its impact on downstream waters in combination with other prairie potholes in the watershed.
That the Trump administration might not include prairie potholes is not entirely unexpected.
The administration is breaking from precedent in writing its new definition by relying on an opinion from the late Supreme Court Justice Antonin Scalia in the 2006 Rapanos v. United States decision. Scalia wrote that only "relatively permanent waters" and wetlands with a surface water connection to them should be protected by the Clean Water Act.
"We've known prairie potholes were on the endangered list from this rewrite," said Kyla Bennett, director of science policy for the advocacy group Public Employees for Environmental Responsibility (PEER), who previously worked as the wetlands enforcement coordinator in EPA's Region 1.
Daren Bakst, senior research fellow in agriculture policy for the conservative Heritage Foundation, said he didn't want to read too much into Pruitt's comments, but that "you can gather a lot just from reading Scalia's opinion."
He noted EPA and the Army Corps have said that states should play a larger role in regulating waterways and wetlands.
"There has to be a significant state role, and if there is a significant state role, then there are going to be a lot of waters that aren't covered that previously were," he said. "You'd have to cut back a lot."
Clues from Pruitt's calendar
Other clues about what the Trump administration plans for WOTUS can be found in Pruitt's meeting schedules, which E&E News obtained under the Freedom of Information Act.
Schedules from August 2017 through January show Pruitt had seven meetings about WOTUS, only two of which included career staff.
The other five meetings involved political appointees, including Office of Water Deputy Assistant Administrator Lee Forsgren and Susan Bodine, who was working as a senior adviser to Pruitt at the time.
Bodine was confirmed in December to lead EPA's Office of Enforcement and Compliance Assurance but was brought into the WOTUS discussions to help write a new definition, according to a source familiar with EPA's discussions about the rewrite.
"She was enormously helpful in what a rewrite would look like," the source said. "She was brought into the discussion because of her extensive policy knowledge."
Before joining EPA, Bodine was chief counsel to Sen. Jim Inhofe (R-Okla.) and a partner at Washington law firm Barnes & Thornburg LLP.
In private practice, she represented a group of industrial, agricultural and municipal interests calling itself the Federal Water Quality Coalition and filed public comments on their behalf opposing the proposed Obama Clean Water Rule in 2014.
Those comments not only criticized the Obama proposal but also offered an alternate vision for determining which wetlands and waterways should be regulated.
The rule was written based on Justice Anthony Kennedy's Rapanos v. United States opinion that small waterways and wetlands should be regulated if they have a chemical, biological or hydrologic impact on larger waters.
Bodine's 2014 argument goes further than simply arguing for a Scalia-based rule, instead asserting that the government should only regulate those waters Kennedy and Scalia would agree on.
The resulting definition would slash the number of waterways and wetlands currently protected by the Clean Water Act.
Bodine drew from Scalia's interpretation to write that a tributary to a navigable water should only be regulated if it "maintains flow even when it is not raining such that it is relatively permanent." And in keeping with Kennedy, she added, the tributary would also have to be "capable of transporting pollution to a navigable water such that it could have a significant impact on a navigable water."
So rather than relying on U.S. Geological Survey maps and aerial photography to simply identify which small waterways connect with larger ones, as some advocates for a Scalia-based regulation urge, EPA and the Army Corps would also have to collect "quantitative information" about their downstream impacts.
That could exclude creeks and streams with constant low flows of water if they were not determined to have a "significant" impact. It would also exclude intermittent streams or seasonal waterways that sometimes seem to disappear and reappear underground due to groundwater recharge.
Bodine's suggested definition for wetlands is similarly restrictive.
Wetlands, she wrote, should only be regulated if they are "part of a continuum that establishes the point at which the water ends and land begins."
Such a definition would not only exclude "isolated wetlands" like prairie potholes, but even those that are relatively close to larger waterways.
The Obama and George W. Bush administrations regulated wetlands separated from larger waterways by berms if they maintained shallow subsurface water connections. The Obama Clean Water Rule also would have included wetlands within 1,500 feet of larger waterways or their 100-year floodplains.
All could be excluded under Bodine's definition.
If EPA and the Army Corps are considering Bodine's 2014 proposal, Southerland said, it would significantly decrease the number of waters covered by the Clean Water Act.
The Obama administration had estimated that a Scalia-based WOTUS definition that excluded seasonal or intermittent waters would protect 30 percent of the nation's stream miles.
Bodine's proposal would protect even less than that, because the figure was calculated based on the USGS maps that would be insufficient to prove jurisdiction under Bodine's definition.
"The way I read her comments," Southerland said, "it would protect just a subset of permanently flowing waters and the wetlands connected to them."
Reporter Kevin Bogardus contributed.
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Natalie Mamerow Aff.M.ASCE
Senior Manager, Federal Government Relations
Washington DC
Original Message:
Sent: 04-13-2018 21:26
From: David Goodrich
Subject: Waters of the U.S. (WOTUS)
All,
This post in the Federal Register provides a lengthy description of the current status of WOTUS and many of the prior events leading up to this post.
https://www.federalregister.gov/documents/2018/02/06/2018-02429/definition-of-waters-of-the-united-states-addition-of-an-applicability-date-to-2015-clean-water-rule?utm_campaign=subscription%20mailing%20list&utm_source=federalregister.gov&utm_medium=email
David Goodrich
------------------------------
David Goodrich Ph.D., P.E., M.ASCE
Rsrch Hydr Engr
Usda-Ars-Swrc
Tucson AZ
Original Message:
Sent: 04-12-2018 10:51
From: Natalie Mamerow
Subject: Waters of the U.S. (WOTUS)
By Annie Snider
04/12/2018 10:20 AM EDT
EPA is seeking to clarify its repeal of the Obama administration's Waters of the U.S. rule, after its initial proposal prompted confusion.
The agency yesterday sent a supplemental proposal to the White House for interagency review. EPA said in a statement that the move is meant to provide additional clarity on the scope of the repeal rule.
The Trump administration said last summer that its goal is to codify the legal "status quo" that existed before the 2015 WOTUS rule was finalized. But several organizations and state regulators said it was unclear what that means, given that the last formal rule from the agency on the issue was finalized in 1986, before two muddled Supreme Court decisions.
"After reviewing this input, EPA and the Army have decided to issue a supplemental proposal to provide the public with additional clarity on the scope of the agencies' efforts," a spokeswoman said. The agency will take additional public comments on the proposal.
The Trump administration is in the midst of a multi-step effort to repeal and replace the water rule, which defines which streams and wetlands are regulated under the Clean Water Act. In February the agency added a "applicability date" to the Obama era rule in a bid to keep it from going into effect after a court stay was lifted. The step at issue today is the formal repeal of the Obama rule. The agency is also preparing to propose a rewrite of the rule that would codify narrower federal jurisdiction.
WHAT'S NEXT: The White House will review the supplemental proposal.
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Natalie Mamerow Aff.M.ASCE
Senior Manager, Federal Government Relations
Washington DC
Original Message:
Sent: 01-25-2018 10:33
From: Natalie Mamerow
Subject: Waters of the U.S. (WOTUS)
CLEAN WATER RULE
In wake of Supreme Court's ruling, more confusion
Ariel Wittenberg, E&E News reporter
Published: Tuesday, January 23, 2018
The Supreme Court's decision yesterday on jurisdiction for litigation of the Clean Water Rule has sparked more confusion. Tom Brandt/Flickr
The Supreme Court's unanimous decision yesterday in a jurisdictional fight over the Clean Water Rule has spurred a dash by the Trump administration to finalize its delay of the 2015 regulation and a push by industry groups for a legislative fix.
Legal experts see chaos ahead.
"This is just all-out war. All-out litigation," Vermont Law School professor Pat Parenteau said in an interview. "This is good news for lawyers, but it is not going to be settled at all."
The high court ruled that the 6th U.S. Circuit Court of Appeals lacks jurisdiction to decide challenges to the Clean Water Rule - also known as the Waters of the U.S. rule, or WOTUS - the Obama-era regulation that clarifies which wetlands and small waterways are protected by the Clean Water Act (Greenwire, Jan. 22).
The Trump administration had argued for the case against WOTUS to proceed in the 6th Circuit, which would have allowed a court-issued stay to remain in place. It also would have allowed U.S. EPA and the Army Corps of Engineers to take their time on plans to repeal and replace the hot-button regulation.
Now the 6th Circuit is expected to withdraw its stay in the coming days or weeks. And when that happens, WOTUS could take effect in 37 states unless a district court agrees to issue a nationwide injunction.
EPA and the Army Corps initially proposed their WOTUS delay after Supreme Court oral arguments in December, when the justices indicated they were skeptical of the government's position that the circuit courts had jurisdiction over Clean Water Act challenges. The delay was proposed as the agencies were plowing through more than 700,000 comments on a separate proposal to fully repeal the Clean Water Rule.
"The Trump administration fully anticipated the likelihood of the Supreme Court's decision and put a plan in place to ensure that the policy guidance provided by the president in his executive order would continue while ensuring certainty for states and the regulated community," EPA spokeswoman Liz Bowman said today.
"The Trump administration's proposed rule to change the applicability dates of the 2015 WOTUS rule will very likely be complete before any change in court jurisdiction can be finalized or the Obama administration's overreaching definition of WOTUS can be implemented," Bowman said.
But delaying the rule may not be so simple, as environmental groups are almost certain to sue over whatever moves EPA makes.
Earlier drafts of the regulation would have changed the "effective date" of WOTUS, and courts have ruled that the effective date of a rule cannot be changed after it takes effect. In its latest proposal, the Trump administration changed that wording, saying it wants to add an "applicability date" to WOTUS. Legal experts say federal judges might not see a difference (Greenwire, Dec. 14, 2017).
Bowman didn't respond to questions about the Trump administration's timeline for a finalizing a WOTUS repeal. But the administration's June proposal doesn't include discussion of the scientific basis for the Clean Water Rule, including a 408-page technical report offering scientific justification for what streams and other water features were included or excluded from the regulation.
Experts say that puts both a delay and a repeal at risk during litigation.
"If the administration had taken the time to put out proposals that truly and fully engaged with the merits of the Clean Waters Rule and tried to come up with a new read, then it would be ordinary days in the courts," Georgetown Law professor William Buzbee said. "But anything they do now, given their proposals, is likely to be legally vulnerable."
If several courts are simultaneously considering lawsuits on both WOTUS itself and a delay or repeal of the rule, things could get even more confusing.
Plaintiffs in the current case against WOTUS are likely to ask district courts to implement their own nationwide stay. At the same time, if environmental groups sue over a Trump administration proposal to delay WOTUS until 2020, one of their first moves could be to ask for a stay of that regulation.
Larry Liebesman, a former Department of Justice attorney who is now a senior adviser with Washington water resources firm Dawson & Associates, said it's not clear what would happen if both regulations are stayed nationwide. But, he said, he doesn't believe a judge would allow a stay of the delay, even if it is on shaky legal ground.
"I would suspect a district judge would look at how chaotic everything is and say, 'I'm going to deny the stay and keep the status quo until all this is sorted out,'" Liebesman said.
Regulatory confusion is nothing new
There could be more chaos if district courts refuse to issue a nationwide stay for WOTUS.
EPA and the Army Corps have said avoiding a patchwork of water regulations is one of their chief motivations for moving to delay and repeal WOTUS - something that Case Western Reserve University law professor Jonathan Adler says wouldn't be unprecedented.
In 1993, the 4th U.S. Circuit Court of Appeals ruled that the Army Corps couldn't use the presence of migratory birds to assert jurisdiction over waters and wetlands. It wasn't until 2001 that the Supreme Court voided that part of the Army Corps' regulations nationwide, meaning that for eight years, the Army Corps and EPA didn't apply the rule to Mid-Atlantic states but used it everywhere else.
"It's not ideal, but it's not as if we haven't had that before in the context of Clean Water Act jurisdiction," Adler said.
"And if we have that again, the republic won't end," he said. "It will be annoying for the government, and it will be annoying for larger entities who have operations in different parts of the country, but eventually, the WOTUS litigation will conclude."
Cynthia Taub, head of Steptoe & Johnson's environmental permitting practice, agreed.
"The question over what is a water of the U.S. has been a mess for years; that's partly why the Obama administration wrote their rule, because the case law is messy," she said. "This confusion is really just a continuation."
Still, that scenario would put the Trump administration in the unique position of having to enforce WOTUS in some states while simultaneously plotting its nationwide demise.
Stephen Samuels, a former DOJ attorney, predicted the administration would likely try to avoid enforcing WOTUS.
"There's no way that a Trump administration would enforce that rule even if it technically is in effect," he said.
But a decision to ignore the Clean Water Rule could also leave the administration vulnerable to more lawsuits from environmental groups trying to compel it to enforce the rule.
"There is only so long EPA could get away with that," Samuels said.
No matter which path the Trump administration chooses, Georgetown's Buzbee said, there are many ways it could be sandbagged by litigation.
"Mathematically, we could chart out a number of different ways this could cut," he said, "but the short story is, we are dealing with a lot of uncertainty."
Calling on Congress
Seeing a tangle of lawsuits ahead, industry groups are vowing a push for Congress to act.
There are many appropriations bills that include language to authorize EPA and the Army Corps to withdraw WOTUS "without regard to any provision of statute or regulation that establishes a requirement for such a withdrawal."
Don Parrish, senior director of regulatory relations at the American Farm Bureau Federation, said yesterday's high court ruling raises the stakes for congressional action.
Provisions being considered would allow the administration to repeal WOTUS without following requirements for public notice and comment under the Administrative Procedure Act. Options for challenging a repeal would shrink if those provisions clear Congress.
"It is even more important than it was before," Parrish said. "I think Congress has an interest in not seeing a patchwork of regulations go into play. They should err on the side of consistency and certainty."
Vermont Law professor Parenteau said Democrats may have lost their ability to fight on environmental issues, given Senate Democrats' failed efforts in the recent appropriations showdown to force a deal on the Deferred Action for Childhood Arrivals program, an immigration policy that deferred deportation proceedings for individuals who entered the country illegally as children.
"If Democrats have already hung themselves out on immigration, are they going to be willing to jump in front of a big appropriations bill for this? I doubt it," he said.
"You can't fight everything. Democrats might just opt to use this as campaign fodder - like 'There you go again; this is what you get with Republicans: You get no clean water.'"
Parrish said both the Farm Bureau and the Waters Advocacy Coalition - more than 60 industry groups seeking to limit federal regulations - will be asking Republicans to push for WOTUS language.
While declining to comment on how he thought Democrats would respond, he said, "There are a whole lot of issues that are important to a lot of different people."
He added, "In any negotiation, nobody gets everything they want."
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Natalie Mamerow Aff.M.ASCE
Senior Manager, Federal Government Relations
Washington DC
Original Message:
Sent: 01-22-2018 10:20
From: Natalie Mamerow
Subject: Waters of the U.S. (WOTUS)
In a blow for the Trump administration, the Supreme Court today sent a key case over the scope of the Clean Water Act to federal district courts. Justices rebuffed arguments by the administration that a federal appeals court should instead hear the litigation. Justice Sonia Sotomayor wrote the unanimous decision for the court.
At issue is the Obama-era Clean Water Rule, which aimed to clarify which wetlands and streams receive automatic protection under the water law.
Dozens of parties filed lawsuits over the rule in both federal appeals courts and district courts, setting up a battle over the correct legal venue for challenges. The Supreme Court agreed to resolve the turf fight.
The National Association of Manufacturers, many states and some environmentalists had pushed for the case to be heard by federal district judges. They argued that the rule did not fall within categories that the Clean Water Act stipulates belong in appeals courts.
The Trump administration, which is working to repeal and replace the rule with a version that would cover fewer bodies of water, argued that challenges fell within the purview of appeals courts because the rule established the boundaries of the Clean Water Act's ban on pollutant discharges and EPA's permitting authority. Having an appeals court decide those factors would be more efficient, the administration argued.
At arguments last fall, justices grappled with whether the law should be read literally or functionally, asking several questions about the practical effects of their decision (Greenwire, Oct. 11, 2017).
The choice of court is significant because it affects the resources needed to litigate the merits of challenges, sets the statute of limitations for filing lawsuits and helps determine whether actions can be challenged in subsequent civil or criminal proceedings.
Today's decision also means that litigation over the Trump administration's replacement rule will be heard in district courts around the country, which are generally more tilted toward overturning federal actions. It also throws into doubt the future of a 6th U.S. Circuit Court of Appeals decision to put the Obama-era rule on hold.
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Natalie Mamerow Aff.M.ASCE
Senior Manager, Federal Government Relations
Washington DC
Original Message:
Sent: 11-08-2017 14:51
From: Cristiane Surbeck
Subject: Waters of the U.S. (WOTUS)
Dear EWRI Members,
As EWRI President I feel responsible for keeping you informed of changes in public policy that affect your professional practice. Considering this new responsibility, please consider this as an invitation for you to engage on the proposed new Waters of the U.S. (WOTUS) rule.
You may already be aware of a proposed rule to rescind the WOTUS rule. This proposed rescission is the first in a two-step process: first the repeal, then the release of a new proposed WOTUS rule that would include a narrower interpretation of which waterways are protected under the Clean Water Act (CWA). The EPA has announced that it plans to release a new version of the rule sometime during the first quarter of 2018. Once this new rule is proposed, it is open for public comment. EWRI would like to request your input to help draft ASCE comments. When the new proposed rule is released in 2018, we will have to organize interested members quickly to review and then to help draft comments since it is unlikely we will have more than 30 days to submit comments.
Here is some background information. Two U.S. Supreme Court decisions (in 2001 and 2006) created significant uncertainty regarding what waters were covered under federal jurisdiction in the Clean Water Act (CWA). In an attempt to bring certainty and predictability to affected stakeholders, the U.S. Army Corps of Engineers (USACE) and U.S. Environmental Protection Agency (EPA) proposed a rule in 2014 to clarify what waters are covered under the CWA. In November 2014, ASCE submitted formal comments to the Obama Administration's proposed Waters of the United States (WOTUS) rule. After two extended comment periods, a final rule was released in 2015, which addressed eight of the nine changes that ASCE recommended be made. In 2016, the 6th Circuit Court of Appeals placed a legal stay on implementation of WOTUS.
The EPA and the U.S. Department of the Army have been holding listening sessions for environmental and public advocacy stakeholders to hear their recommendations to revise the definition of WOTUS under the CWA. The agencies provide a brief presentation via webinar and then invite stakeholders to provide verbal recommendations. The presentations are available at: https://www.epa.gov/wotus-rule/listening-session-presentations. The EPA plans to hold two more listening sessions over the course of the next two weeks; feel free to review upcoming sessions and to register for them here.
Supporting materials and comments from those who did not have an opportunity to speak can be submitted to the docket, identified by Docket ID No. EPA-HQ-OW-2017-0480, at https://www.regulations.gov/comment?D=EPA-HQ-OW-2017-0480-0001.
There is no immediate action/input we are looking for at this time other than to start getting people re-interested in this issue.
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Cristiane Surbeck
President, ASCE-EWRI
Ph.D., Ph.D., P.E., ENV SP, F.EWRI, M.ASCE
Associate Dean and Associate Professor
University of Mississippi
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