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What's the status of WOTUS?

Law of the Land

Varnum LLP | April 3, 2017

 Phelps

On Feb. 28, President Trump issued an Executive Order instructing the EPA and the U.S. Army Corps of Engineers to review and reconsider the WOTUS ("Waters of the United States") rule adopted by the Obama administration in 2015.  That rule has been the subject of massive controversy and litigation.  The rule defines the term "waters of the United States" as used in the Clean Water Act and attempts to define the scope of the federal government's jurisdiction to regulate water and when states, local governments and others (including farmers) must seek permits to develop land because it affects waters of the United States. 

The EPA and Army Corps had been without a valid WOTUS definition for some time. In 2001 and 2006 the Supreme Court rejected the agencies’ definitions as too expansive. According to the Court, the agencies sought to assert federal regulatory authority on isolated intrastate waters and other features with insufficient connections to navigable waters, in violation of the CWA.

However broad the scope of the CWA, the Court warned, it could not be turned into a federal land-use control law.  The Obama administration’s 2015 WOTUS rule was an effort to reassert as much federal authority as could be justified under the Court’s 2001 and 2006 decisions.  The rule was under consideration for years, and was finalized after the agencies received over 1 million public comments and held over 400 public meetings.

The final rule, however, did little to address the many concerns raised by the public.  Namely, opponents of the rule objected that the definition of "waters of the United States" was defined in such a way as to give the federal government power to regulate virtually any place that water flows or accumulates, including minor wetlands and typically dry streambeds that only occasionally carried storm water.

After the rule went into effect in 2015, it was immediately challenged.  Several states and landowner groups sued, and the rule was stayed in federal court.  Interestingly, the first issue has been simply deciding which court has jurisdiction to hear the challenges to the rule.  The United States Supreme Court recently agreed to resolve that issue. A decision in this case is expected before the court adjourns in June.  Thereafter, the substantive challenges to the rule can proceed.

But of course, in the middle of all of this, President Trump was elected.  While the President has made it clear that he opposes the rule, undoing the rule will take more than the stroke of his pen.  The rulemaking process under the Obama administration was arduous and lengthy.  Under federal law, the EPA and Army Corps have to utilize the same rule-making process to repeal the rule. 

Consequently, it may take just as long to revise or undo it as it did to create it.  At the end of that process, the litigation will likely continue anew, but this time, the proponents of the rule will become the plaintiffs challenging repeal. 

For at least the next for years, it seems unlikely that the WOTUS rule will be enforced – either because the administration refuses to enforce it or because of court-ordered stays. 

Of course, the quickest, easiest solution to this problem would be for Congress to simply amend the Clean Water Act to provide a more detailed definition, but that seems unlikely.   

Aaron Phelps is a partner with Varnum Law focusing on Michigan farms and agri-business. He also writes a bi-monthly ag law newsletter."

 

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