Policy Brief

Final "Waters of the U.S." Rule

ACTION NEEDED:

Urge your U.S. Senators and U.S. House Representatives to support legislative language to withdraw and rewrite the final “Waters of the U.S.” rule.

BACKGROUND:

On August 28, 2015, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) began to implement their new "Waters of the U.S." rule. However, lawsuits were filed almost immediately after the rule was finalized and Congress has made multiple attempts to overturn the rule.

Since its proposal, NACo has expressed multiple concerns over the rule's impact on county-owned and maintained roadside ditches, bridges, flood control channels, drainage conveyances and wastewater and stormwater systems and has called for the final rule to be withdrawn until further analysis and more in-depth consultation with state and local officials can be completed.

As co-regulators under provisions of the Clean Water Act, counties are not just another stakeholder in this discussion. Despite having provided detailed feedback and congressional testimony on multiple occasions on the potential impact of the proposed rule on counties, and despite repeated attempts to have a meaningful consultation process with the federal agencies, many issues remain unresolved.

Under the final rule, the following types of ditches are jurisdictional:

  • Roadside and other ditches that have flow year-round (perennial flow)
  • Roadside and other ditches with intermittent flow (not continuous, irregular) that are a relocated tributary, or are excavated in a tributary, or drain wetlands
  • Ditches, regardless of flow, that are excavated in or relocate a tributary

The final rule also newly defines the term "tributary," and in doing so states that "a tributary can be a natural, man-altered or man-made water and includes waters such as rivers, streams, canals, and ditches." Since ditches can now be classified as tributaries, and the new definition of tributaries includes ditches, it remains unclear what ditches will actually be exempt under the new rule.

IN THE ADMINISTRATION

President Trump has stated that one of his top priorities in his presidency is to repeal a number of controversial regulations that were finalized during Obama’s Administration, including the WOTUS rule. While the intent is straight-forward, in reality, dismantling the WOTUS rule is challenging and fraught with difficulties. To reverse the new rule, the Trump Administration has three options: use the existing regulatory process, let the courts decide or ask Congress to address WOTUS. While 

the administration can use the Administrative Procedures Act (APA) to withdraw or rewrite the rule, APA has specific requirements for proposing or deleting rules that are complex and difficult to meet. For example, to repeal a rule, a public comment process is required, and to ensure the proposal is not invalidated by the courts, the process must be deliberative and thoughtful. Additionally, the administration must provide a strong and legally defensible justification for withdrawing the rule. Otherwise, it opens the proposal up to legal challenges. Ultimately, this process can take years.

IN THE COURTS

While numerous WOTUS cases have been filed by 31 states and other private parties in separate district and appeals courts, the U.S. Judicial Panel on Multidistrict Litigation decided that the cases in the Appeals Court would be merged in the 6th Circuit Court of Appeals because they are similar in nature. In the meantime, the 6th Circuit Court of Appeals has placed a nationwide stay on the rule. Regardless of how the 6th Circuit Court of Appeals case plays out, it is likely that the decision will be appealed directly to the Supreme Court, which may take years to resolve.

If the rule is struck down by the district or appeals court, the Trump Administration could refuse to continue to defend the case, which hypothetically would kill the case. But, in reality, it is more likely that the parties in the case (such as environmental groups) would intervene to appeal a lower court’s ruling, and the litigation would continue with or without the Trump Administration’s involvement.

It is also possible that the administration may request that the courts grant a “voluntary remand” of the rule back to the EPA and the Corps. A voluntary remand would send the rule back to the agency for a rewrite of the rule, this process must go through a public comment period, which would likely take years, which highlights the need for a legislative fix.

CONGRESSIONAL ACTION

Last Congress, both the U.S. Senate and the U.S. House of Representatives easily passed a Congressional Review Act (CRA) resolution of disapproval that would have repealed the revised “Waters of the U.S.” (WOTUS) rule. However, President Obama vetoed the bill. The CRA is a rare procedural move that allows Congress to overturn any “major” federal rule that was finalized within the past 60 legislative days. Since WOTUS was finalized over 60 days ago, CRA cannot be used to withdraw the rule.

That leaves several other options, including passing free-standing legislation and/or inserting legislation riders in appropriations bills. While either may appear be an ideal and straight-forward scenario, Senate rules will make it difficult for the GOP – with its current 52-48 majority – to reach the 60 votes needed to bypass filibusters by Democratic lawmakers.

KEY TALKING POINTS:

  • As co-regulators under provisions of the Clean Water Act, counties are not just another stakeholder in this discussion.
  • NACo has expressed multiple concerns over the rule's impact on county-owned and maintained roadside ditches, bridges, flood control channels, drainage conveyances and wastewater and stormwater systems and has called for the final rule to be withdrawn until further analysis and more in-depth consultation with state and local officials can be completed.
  • Last Congress, both the U.S. Senate and the U.S. House of Representatives easily passed a Congressional Review Act (CRA) resolution of disapproval that would have repealed the revised “Waters of the U.S.” (WOTUS) rule. However, President Obama vetoed the bill.

For further information, contact: Julie Ufner at 202.942.4269 or jufner@naco.org

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