In the past two weeks, U.S. District Courts in South Carolina and Washington issued decisions that dealt additional blows to the Trump Administration's efforts to unravel the 2015 Obama-era "waters of the United States" rule ("Obama Rule"). In light of these rulings, the Obama Rule appears poised to remain effective in 22 states for at least the immediate future.
Importance of "WOTUS"
Both cases address rulemaking concerning the federal definition of
the term "waters of the United States"
("WOTUS"). This term identifies the scope of
federal jurisdiction under the Clean Water Act, which prohibits the
unpermitted discharge of pollutants, including soil or fill
material in water bodies, wetlands and even some normally-dry
lands. Accordingly, as the definition of the WOTUS expands,
so does the federal government's control over construction and
other activities affecting these areas.
Recent Decisions and Implications
Two recent decisions have dimmed the prospects of the Trump
Administration's "Suspension Rule," which delayed the
effective date of the Obama Rule until 2020, and reinstated the
definition of WOTUS that existed before the Obama Rule. The
Western District of Washington decision vacated the rule nationwide
on November 26 in Puget Soundkeeper Alliance, et al., v.
Wheeler, et al., and the District of South Carolina
decision in South Carolina Coastal Conservation League, et
al. v. Wheeler, et al., clarified on December 4 that it had
both enjoined the Suspension Rule and vacated it
nationwide. Even though these decisions rejecting the
Suspension Rule applied nationwide, only 22 states are now subject
to the Obama Rule — this is because many states and industry
members have directly sued to challenge the Obama Rule.
They obtained preliminary injunctions, preventing the
rule's enforcement in 28 states. In these jurisdictions,
when the Suspension Rule was vacated nationwide, it did not revive
the Obama Rule because the preliminary injunctions were already in
place.
Nonetheless, the effect of the two recent decisions is that the federal government will now need to contend with adverse District Court decisions from different Circuits to prevent the Obama Rule from continuing to apply in 22 states.
Looking Forward: New Rule Forthcoming
Imminently
This week, U.S. EPA and the Army Corps of Engineers ("Army
Corps") are expected to unveil a replacement rule
that provides an alternate definition of WOTUS. Although the
precise details of this rulemaking are unclear, last year President
Trump specifically instructed the U.S. EPA and the Army Corps to
consider adopting a specific definition based on a plurality
opinion authored by Justice Scalia in Rapanos v. United
States, 547 U.S. 715 (2006) — a definition that is
narrower than both the Obama Rule and prior definitions. This
definition covers non-navigable waters that exhibit a relatively
permanent flow and wetlands only if they have a continuous surface
water connection with a relatively permanent water body.
However, U.S. EPA's Unified Agenda notes that a
Final Rule is not expected until September 2019. That rule
will almost certainly generate further litigation, meaning the
regulatory environment is expected to remain in flux as courts wade
through increasingly-complex litigation on this topic.
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