The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) have released a pre-publication copy of a Final Rule that was proposed on November 22, 2017 and which will soon be published in the Federal Register. The new rule will establish an “applicability date” for the controversial “waters of the United States” (or WOTUS) rule that was published in the Federal Register on June 29, 2015. The 2015 rule had an effective date of August 28, 2015, but the rule was first stayed by the U.S. District Court for North Dakota on August 27, 2015 for the 13 states challenging the rule in that court, and then by a nationwide stay by the U.S. Court of Appeals for the Sixth Circuit on October 9, 2015.
Last week, the U.S. Supreme Court, in the case of National Association of Manufacturers v. Department of Defense (NAM decision), ruled that the federal District Courts, and not the U.S. Courts of Appeals, had original jurisdiction to hear these appeals, so it appears there will be multiplicious litigation around the country.
The new rule these agencies have promulgated will establish an applicability date of two years after the date of its publication in the Federal Register. The text of the 2015 rule that appears in the Code of Federal Regulations—where it will remain– does not now include an “applicability date,” and this lacuna would be fixed.
Since thousands of comments were received in this proceeding following its proposal , it is likely this new rule will also be challenged. For instance, some commenters questioned the impartiality of the EPA Administrator, argued that he should be disqualified from participating in the rulemaking, and stated that he should be subject to an ethics review as contemplated by the Standards of Conduct for Executive Branch employees. Others argued that a NEPA review should have been undertaken as well. These complaints were rejected by the agencies.
The agencies also have an outstanding rulemaking proceeding underway that would reinstate the pre-2015 WOTUS definitions the agencies were following for many years, as well as a project that would consider substantive changes to the 2015 Rule. Meanwhile, the agencies stress that this new rule “does not add any new regulatory requirements… but leaves in place the current legal status quo nationwide while the agencies engage in substantive rulemaking to reconsider the definition of “waters of the United States.”
This action, by pausing the applicability date of the 2015 WOTUS definition, will “provide continuity and regulatory certainly for regulated entities, the States, the Tribes and the public.”