Already this year, there have been several noteworthy developments related to WOTUS and revisions that are being made under the current administration. There are a lot of moving parts and understanding where things stand can get confusing. Recently, NALP consultant David Crow of DCLRS provided a breakdown of where things stand that provides significant clarity and we thought the following overview would be helpful for NALP members:
- The Supreme Court ruled that the Circuit courts do not have jurisdiction over WOTUS
- This means the 6th Circuit decision to stay the rule is moot and will be vacated before the end of February.
- This means the 11 United States District courts have jurisdiction over WOTUS implementation.
- The District Courts have ruled inconsistently on the rule, for instance, the North Dakota District Court vacated the rule for the 13 states that filed petitions in that District. This means that 27 states are under WOTUS. The remaining Districts haven’t ruled because of the 6th Circuit’s stay of the rule.
- Now, each District court (11 of them) are free to rule on WOTUS. It is important to note that a District court can rule on a specific grievance and would find it difficult to force WOTUS on the states not covered by the North Dakota District. However, if one of the District courts enjoined the WOTUS rule (meaning applied it to all 50 states) a conflict would arise that would have to be litigated at a higher level meaning the Appeals court.
- The U.S. EPA released an Applicability rule disallowing any court from enforcing WOTUS for a period of 2 years likely beginning April 1, 2018.
- A District court COULD enjoin the WOTUS rule, overthrowing the Applicability rule, if the litigant can show harm from not having WOTUS in place. This might be difficult since the rule didn’t apply in many Districts for very long and in most Districts at all. But it doesn’t mean that a liberal District like the 11th on the west coast might not try to do this.
- Other District courts, the remaining 10, could attempt to reverse the 11th District if, in fact, they did enjoin the rule. This is purely speculative.
- EPA is still on track to get a rule rule, replacing WOTUS, by the end of the year at the fastest or perhaps early next year. When this occurs, the final rule would over ride the District courts meaning that WOTUS would not apply anywhere in the U.S.
- The lawyers continue to argue each of these points but none have a clear picture regarding what the District Courts will do, what would happen if there is a direct conflict between the Districts, and how fast the rule can be implemented.
As we said, the issue is very complex, but we feel the above summary does a great job of stating the facts in the simplest way possible. Obviously, NALP will continue to track and report on all developments related to WOTUS.