Concerned that an appeals court stay of the contentious Clean Water Rule is at risk, U.S. EPA and the Army Corps of Engineers are working to delay the effective date of the Obama-era regulation.
The White House Office of Information and Regulatory Affairs is considering the proposed amendment to the 2015 standard, also known as the Waters of the U.S., or WOTUS, rule.
The Clean Water Rule, which seeks to clarify which wetlands and small waterways are protected by the Clean Water Act, went into effect in August 2015. But the 6th U.S. Circuit Court of Appeals issued a nationwide stay a few months later (Greenwire, Oct. 9, 2015).
An EPA spokeswoman would not say when the new effective date would be or if the administration is moving to make any other changes.
"EPA and the Army are taking this action to provide regulatory certainty and to give the agencies time to consider the two-step process to rescind the 2015 rule and revise the definition of ‘waters of the United States,’" she said in an email.
But according to an EPA water official who spoke on background, the decision to change the effective date is related to the pending Supreme Court case over whether challenges to WOTUS belong in federal appeals or district courts.
If the high court rules the review belongs in district courts, it could call into question the nationwide stay from the 6th Circuit.
If the stay were voided, WOTUS would only go into effect in 37 states, thanks to another stay order from a judge in the U.S. District Court for the District of North Dakota.
EPA and the Army Corps are currently working to repeal WOTUS, an action that would leave the jurisdictional question moot. But the agencies haven’t finalize that action.
"They are clearly trying to play out the cards and play out the chess game to make sure [the 2015 rule] doesn’t come back into effect," said Stephen Samuels, a former Department of Justice attorney.
EPA and the Army Corps acknowledged concerns about the Supreme Court case in their proposed repeal of WOTUS, saying the jurisdictional confusion is one reason the regulation should simply disappear.
If the Supreme Court decided the 6th Circuit doesn’t have jurisdiction and the nationwide stay were lifted, there would be "inconsistencies, uncertainty and confusion as to the regulatory regime that would be in effect pending substantive rulemaking," the agencies wrote.
It is unclear when the Supreme Court will issue its decision, but it could be any time before the end of June.
At the same time, the comment period on EPA and the Army Corps’ proposal to rescind the 2015 rule has closed, meaning the administration could chose to finalize it at any time.
Completing the repeal comes with its own risks because it will almost certainly be challenged by environmental groups, says Larry Liebesman, a former DOJ attorney who is now a senior adviser with the Washington, D.C., water resources firm Dawson & Associates.
That means there is a chance, however small, that a stay could be issued on the repeal at the same time that the existing stay on WOTUS is lifted.
"There are a lot of moving pieces here," said Liebesman. "They obviously don’t want the 2015 rule to go back into effect."
Given that the administration has known about the risks involved in the Supreme Court case for months, Samuels and Liebesman said it is unclear why they are only now attempting to change the effective date of the 2015 measure.
One theory from observers is that the administration grew concerned following oral arguments before the Supreme Court last month.
Then, both Justices Ruth Bader Ginsburg and Stephen Breyer suggested that they were having trouble with the government’s position that WOTUS should be resolved at the appellate level (Greenwire, Oct. 11).
"The sense I got is that there is a reasonable chance that the Supreme Court will hold that review is for district court," said Liebesman. "Some of the comments from the more liberal justices suggested that."
Reporter Robin Bravender contributed.