On January 31, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) finalized a rule to delay until 2020 the implementation date of the 2015 “Waters of the U.S.” (WOTUS) rule.
Soon after the rule was finalized, two lawsuits were filed challenging the agencies’ authority to change the implementation date of a final rule. The first suit, filed in the U.S. District Court for the Southern District of New York, was brought by the Attorneys General of 11 states (New York, California, Connecticut, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, Washington) and the District of Columbia. The second was filed by a group of 10 environmental groups, led by the Southern Environmental Law Center, in the U.S. District Court for the District of South Carolina.
The suits challenge whether the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) have the authority to delay the 2015 WOTUS rule for two years. The lawsuits claim the comment period for the proposed delay, at 21 days, was too short to enable meaningful public comment on an already finalized rule.
WOTUS is a term used in the Clean Water Act (CWA) to determine which waters and their conveyances fall under federal or state CWA permitting authority. In 2015, the Obama Administration finalized a new definition of WOTUS that was immediately challenged in both district and appeals courts. Since there was disagreement over which court had jurisdiction, a stay was placed on the rule, first in the state U.S District Court of North Dakota, followed by a nationwide stay in the 6th U.S. Circuit Court of Appeals. Last month, the U.S. Supreme Court ruled that the cases belong in the district courts. Since the Appeals Court no longer has jurisdiction, the 6th Circuit stay will be lifted for most of the country (except for the 13 states in the North Dakota district court: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, and New Mexico).
The administration has argued that the Supreme Court’s decision to place the cases in the district courts, the impending removal of the 6th Circuit Court’s nationwide stay and the administration’s efforts to withdraw and rewrite the 2015 rule necessitates a two-year delay. The agencies have 60 days to respond to the two suits.
Since the rule was originally proposed in 2014, NACo has expressed concerns about the impact a broader interpretation of WOTUS may have on county-owned and maintained roads and roadside ditches, bridges, flood control channels, drainage conveyances and wastewater and stormwater systems. NACo had called for the 2015 final WOTUS rule to be withdrawn until further analysis and more in-depth consultation with state and local officials could be completed. NACo has been heavily engaged with the EPA, participating in Executive Order 13132 Federalism briefings to discuss concerns with the 2015 WOTUS rule and next steps to replace it.