Trump Administration Orders Review of Waters of the U.S. Rule



On February 28, 2017, President Donald Trump signed an executive order that requires the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers to review the final “Waters of the U.S.” rulemaking published on June 29, 2015. The “Waters of the U.S.” rulemaking defines the scope of waters protected under the Clean Water Act. Several states and industry associations challenged the final rulemaking upon publication, alleging that the definition exceeds the scope permitted by the Clean Water Act. The U.S. Court of Appeals for the Sixth Circuit is currently reviewing challenges to the merits of the final rule. Additionally, a challenge to the Sixth Circuit’s jurisdiction to review the final rule is currently pending before the Supreme Court of the United States.

The executive order requires that EPA and ACOE consider whether the final rulemaking ensures “that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” The executive order also requires that EPA and ACOE consider interpreting “Waters of the U.S.” in a manner consistent with Justice Antonin Scalia’s opinion in Rapanos v. U.S., 547 U.S. 715 (2006).

In Rapanos, Justice Scalia authored a plurality opinion that concluded that “Waters of the U.S.” – and therefore the jurisdiction of federal agencies under the Clean Water Act – includes only those relatively permanent, standing, or continuously flowing bodies of water. Conversely, Justice Scalia’s plurality opinion stated that water bodies that flow intermittently or ephemerally are not “Waters of the U.S.” Moreover, Justice Scalia’s opinion stated that wetlands are not jurisdictional based on a mere hydrologic connection to “Waters of the U.S.” Instead, for a wetland to be considered jurisdictional, there must be an inherent ambiguity concerning where the jurisdictional water ends and the wetland begins.  

Wednesday, March 01, 2017

SCOTUS to Review Clean Water Act Case


On January 13, 2017, the Supreme Court of the United States granted certiorari in Nat’l Ass’n of Manufacturers v. Dep’t. of Def., et al., a case from the U.S. Court of Appeals for the Sixth Circuit. The case arises from a challenge to the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers “Waters of the U.S.” rulemaking, published June 29, 2015, which defined the scope of waters protected under the Clean Water Act. 


Several states and industry associations challenged the rulemaking upon publication, alleging that the definition exceeded the scope of the Clean Water Act. EPA and the Army Corps of Engineers allege that, under the Clean Water Act, judicial review of the final rulemaking must occur at the U.S. Court of Appeals. Several states and trade associations disagree, arguing that the Clean Water Act requires judicial review from a U.S. District Court.

Multiple circuit court challenges have since been consolidated at the Sixth Circuit. In October 2015, the Sixth Circuit stayed the rule nationally pending further review. EPA and the Army Corps of Engineers have since resumed nationwide use of the agencies’ prior regulations regarding the scope of “waters of the United States.” In February 2016, a Sixth Circuit panel determined in a 2-1 ruling that jurisdiction was exclusive to the U.S. Court of Appeals. The Supreme Court is likely to determine whether the Clean Water Act vests judicial review in the federal circuit or district courts.
Monday, January 16, 2017

Recent Posts

Tags

Archive

The Oil & Gas Law Blog is made available for educational purposes only and to give you general information as well as a general understanding of the law, not to provide specific legal advice. Use of this blog does not create an attorney-client relationship between you and any of the blog contributors or Harris Finley & Bogle. The Oil & Gas Law Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.