WOTUS - The Next Chapter (UPDATED July 27)

Wikimedia Commons Photo: Lowell Rothschild

On June 29, the U.S. Environmental Protection Agency and Army Corps of Engineers published the final Clean Water Act jurisdiction rule (a/k/a “Waters of the United States” or "WOTUS" rule) in the Federal Register.  The rule is now set to become effective on August 28.

Beyond the predictable rhetoric, the impending effective date has spurred both legal and legislative challenges seeking to block the rule's implementation.   As if on cue, on the morning of June 29, the attorneys general of Texas, Louisiana and Mississippi filed suit in U.S. District Court for the Southern District of Texas and in the and 5th U.S. Circuit Court of Appeals to block the rule, arguing that it “is an unconstitutional and impermissible expansion of federal power over the states and their citizens and property owners” (read the complaint and petition for review here). Later in the day, 13 other states filed their own anti-WOTUS suit (link to the complaint here) in U.S. District Court for the District of North Dakota (Alaska, Arkansas, Arizona, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming) claiming the rule violates the Clean Water Act.   Ohio and Michigan filed a suit on Monday afternoon in the U.S. District Court for the Southern District of Ohio in Columbus, arguing that the rule's definition of a tributary would "include almost every conceivable water tributary in the country," according to a press release from the Ohio Attorney General.

On June 30, attorneys general from nine more states sued to stop the water rule in U.S. District Court for the Southern District of Georgia. That group of states included Alabama, Florida, Georgia, Kansas, Kentucky, South Carolina, Utah, West Virginia and Wisconsin. That latter complaint (found here) begins by arguing that the "case involves an attempt by two agencies of the federal government to usurp the States' primary responsibility for the management, protection, and care of intrastate waters and lands."

On July 8, the Attorney General for Oklahoma filed a legal challenge in the U.S. District Court for the Northern District of Oklahoma against the EPA's Clean Water Rule, arguing that the measure violates the Administrative Procedure Act, the Clean Water Act, the 10th Amendment and the Commerce Clause.  This suit brought the states'  lawsuit total to 28.

In addition to the states, other organizations have filed suit to block the rule. Private challenges have been filed by Murray Energy Corp. (N.D. W.Va. No. 1:15-cv-00110 - filed June 29), by a coalition of national organizations (S.D. Tex. No. 3:15-cv-00165 - filed July 2), and by several business groups, including the U.S. Chamber of Commerce, National Federation of Independent Business, Portland Cement Association, State Chamber of Oklahoma and Tulsa Regional Chamber (N.D. Okla. No. 4:15-cv-00386-JED-PJC - filed July 10).

At the end of the day, these various states' and others' lawsuits may be consolidated. Although it is likely that the courts will take their time deciding how and to where the eventual litigation will be consolidated. Deciding which court finally considers any consolidated suit is not unimportant, as judges in more conservative Districts may be more inclined to side with the states.

At the other end of the clean water rule spectrum, the Waterkeeper Alliance has asserted that the rule doesn't cover enough waters, and on July 22, that organization, along with the Center for Biological Diversity, Center for Food Safety, Humboldt Baykeeper, Russian Riverkeeper, Monterey Coastkeeper, Snake River Waterkeeper, Upper Missouri Waterkeeper, and Turtle Island Restoration Network filed a petition (which will be finalized later) with the U.S. Court of Appeals for the Ninth Circuit in California challenging the rule's categorical and "arbitrary" exemptions for some industries.

On the legislative front, on June 10, the Senate Environment and Public Works Committee approved S. 1140 - a bill that would effectively require the withdrawal of the rule and directs the EPA and Army Corps to seek input from states in drafting a new proposal.  Three Mississippi River Basin Democrats, Sens. Joe Donnelly (IN), Heidi Heitkamp (NE) and Joe Manchin (WV), are the only members of their party to co-sponsor the bill, and while it's possible that the legislation could gain the 60 votes needed to pass the Senate, it’s doubtful that 67 votes could be lined up to overturn an expected Presidential veto.  In May the House easily passed H.R. 1732 (the "Regulatory Integrity Protection Act of 2015"), which would also block implementation of the rule, but differs from the Senate bill.   Should the Senate bill pass, those differences would have to be resolved.

Both the House and Senate versions of their fiscal year 2016 Interior and Environment spending bills approved in committee include a rider that would block the administration from implementing its WOTUS rule. The White House threatened to veto both bills for a variety of reasons related to funding cuts and and policy riders. The House was poised to pass H.R. 2822, its Interior and Environment spending measure, during the week of July 6. However, House Republican leaders canceled late-week votes on the bill following an intra-party split over a Confederate flag display amendment.  House Appropriations Committee leaders believe that the bill is now dead for all intents and purposes. The Senate has yet to schedule floor time for its bill; although Senate Democrats have promised to block all Republican spending measures until the parties can renegotiate discretionary spending caps presently in place.

On July 7, Rep. Adrian Smith (R-NE) filed a Congressional Review Act (CRA) challenge to vacate the EPA's clean water rule: H. J. Res. 59.  Only one CRA challenge has ever successfully passed Congress and became law, so its successful use is a steep legislative hill to climb, especially in the face of a likely Presidential veto.  For details on how Congressional Review Act challenges work, you can read this Congressional Research Service July 29 report on alternatives available to Congress to address the WOTUS rule issue.