How SCOTUS’ WOTUS action created an EPA dilemma and what this means for permitting

Justic Sotomayor wrote the unanimous decision

Justic Sotomayor wrote the unanimous decision

On January 22, the Supreme Court ruled unanimously that litigation to overturn the EPA’s 2015 attempt to expand the definition of “Waters of the US” to include intermittent tributaries and isolated ponds should be heard by federal district courts. The Trump Administration had argued those cases should be heard in federal appeals courts.  Miranda Green at The Hill has a good write-up of the day’s events here.

The Court’s decision creates an immediate dilemma for EPA in its efforts to repeal and replace the Obama Administration rule. As a result, private applicants seeking permits to impact waters and wetlands now face new concerns that must be addressed during their negotiations.

The Supreme Court Rules on the Contentious WOTUS Jurisdiction Issue

As I’ve blogged previously (see here and here), the 2015 WOTUS definition took more than four years to issue but the response to the rule was swift. Thirty-one states and multiple business groups filed or joined litigation to overturn the rule in both federal district courts and courts of appeals. After the Sixth Circuit U.S. Court of Appeals issued a nationwide in 2015, the Supreme Court took the case to sort out jurisdiction. The Trump Administration argued for exclusive appellate review to keep the stay in effect to provide “breathing room” for EPA’s “repeal and replace” actions.

However, as Justice Sotomayor wrote in in her unanimous decision, the Court held that WOTUS was only a definitional rule and did not fit under the narrow EPA actions for exclusive jurisdiction in the Court of Appeals under the Clean Water Act.

EPA’s Dilemma

As a result of SCOTUS’ action, the Sixth Circuit must lift its nationwide stay of the 2015 rule. That could result in the rule becoming effective and enforceable by citizens groups, a result that EPA clearly does not want.

EPA therefore faces the immediate dilemma of how to prevent the rule from becoming effective until it issues a replacement rule, which could take months. The agency could try to finalize its proposal to rescind the Obama rule and its proposal to extend the applicability date of that rule pending issuance of a replacement rule.

Alternately, it could also ask a federal district court – for example, the North Dakota federal court that first enjoined the rule in 2015 across 13 states – to issue a nationwide stay. EPA could also push a proposed rider to a pending appropriations bill that would exempt the repeal rule from judicial review and create a faster way for EPA to issue a repeal.

In the interim, however, environmental groups and some states will likely try to tie EPA up in litigation in an effort to make the 2015 rule applicable as long as possible.

What should permit applicants do?

Unfortunately, there is no “magic wand” to clarify the WOTUS situation. If anything, the Supreme Court ruling further muddies a process that could take years to sort out.

Generally, my advice is for permit applicants to focus new attention on understanding and applying the guidance issued after the 2006 Rapanos ruling, as most have been doing during the stay. This strikes me as the soundest and most defensible way to keep desired projects moving forward in the review process.

Above all, applicants need to carefully monitor developments and stay in close contact with the relevant Corps districts for further guidance.

Larry Liebesman
Senior Advisor

A nationally recognized environmental lawyer with more than 35 years of experience, including 11 years at the U.S. Justice Department, Larry specializes in federal Clean Water and Endangered Species Acts and the National Environmental Policy Act (NEPA).

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