EPA and the Army Corps of Engineers are proposing to extend the effective date of the 2015 "waters of the U.S." rule for two years in order to eliminate confusion that may arise from a Supreme Court ruling on where the challenges to that rule should be heard – in the federal district courts or the federal circuit courts of appeals. The Supreme Court is expected to issue a decision soon on the proper venue for challenges to the WOTUS rule. If the court says they should be heard in the district courts, then the 6th Circuit Court of Appeals' nationwide stay of the WOTUS rule would expire and the rule would then be subject to a stay issued by a federal judge in North Dakota that applies to 13 states covering a large part of the country. If the high court says the challenges should be brought in the appeals courts, "the litigation in the 6th Circuit could resume and therefore control over which regulatory definition of (WOTUS) is in effect while the agencies engage in deliberations on the ultimate regulation could remain outside of the agencies," according to the proposed rule issued by EPA and the Corps. "The proposed interim rule would establish a clear regulatory framework that could avoid the possible inconsistencies, uncertainty and confusion that could result from a Supreme Court ruling while the agencies reconsider the 2015 rule," EPA and the Corps said in the proposal, due to be published in the Federal Register Wednesday, Nov. 22.
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