WASHINGTON, July 26, 2017 - The Trump administration’s effort to write new “waters of the U.S.” regulations takes a big step forward Thursday with publication of a proposed rule to withdraw the Obama administration’s 2015 rule.
The proposal was announced June 27 but publication was delayed because of issues involving the formatting of the document, Don Parrish, American Farm Bureau Federation’s senior director of regulatory relations, told Agri-Pulse earlier this week.
Now that questions about the way the document looks have been laid to rest, interested parties will have an opportunity to comment on the proposal’s substance.
First, however, EPA and the Army Corps of Engineers will have to address concerns that, at 30 days, the comment period is way too short. Nineteen environmental groups, more than 70 members of the House of Representatives, and 22 U.S. senators have already complained that a month is not enough time.
In a letter to EPA and the Corps last month, the environmental groups, including the Natural Resources Defense Council, Earthjustice, Southern Environmental Law Center and others, asked for a six-month comment period. They contrasted the 30 days with the six months provided for comment on the WOTUS rule before it was published in June 2015.
“Your planned 30-day comment period disregards the more than one million people who participated in the development of that rule and is a grossly inadequate amount of time for stakeholders to meaningfully engage in this rulemaking process,” the groups said.
The senators urged the agencies to extend the comment period to at least 90 days, “the same duration as offered by the previous administration when it first proposed the 2015 rule.” The House members asked EPA Administrator Scott Pruitt to add 90 days to the 30-day comment period.
EPA, which has the lead role in the WOTUS rewrite, is faced with a “dilemma,” Parrish said today. It wants to complete the revision quickly, but it also needs to take into account the views of those who seek more time to comment. “If I were advising the administrator, I would tell him to be considerate of the view that people need more time,” Parrish said.
Pruitt has said he want to propose a revised rule by the end of this year, which could be a tall order with a comment period that extends into late October or later.
One reason the agency wants to move fast is because the Supreme Court will hear a case Oct. 11 on the issue of where multiple legal challenges to the WOTUS rule should be adjudicated – in the federal circuit courts of appeal or in the federal district courts. The timing of the court’s ruling has implications for the legality of the WOTUS rule across the country.
The 6th Circuit Court of Appeals has already ruled, narrowly, that it should decide the lawfulness of WOTUS. The court stayed the implementation of the rule in October 2015.
But by agreeing to decide on the question of legal venue, the Supreme Court has cast doubt on the 6th Circuit decision. The “question presented” by the case, as set forth in the National Association of Manufacturers’ petition, states that “after full briefing and argument, the Sixth Circuit held that it, not the district courts, has jurisdiction to decide challenges to the rule. But only one judge actually believed that to be the correct outcome.”
Parrish surmised that the court took up the case because it believes the 6th Circuit decision was wrong – as argued by the Farm Bureau and other ag groups. If the Supreme Court concludes late this year or early next year – before EPA has issued a new rule – that district courts should decide the WOTUS challenges, the nationwide stay of the rule would go away, district courts acros the country will be able to issue their own decisions on WOTUS, and “you’ll have a patchwork implementation of a law that the administration has the full intent of withdrawing,” Parrish said.
“It would be a disaster for the regulated community,” Parrish said.
For now, however, the attention of farm groups who oppose WOTUS and environmental organizations who want to preserve it or expand its protections for waters and wetlands will be on the proposed withdrawal of the rule.
If, as expected, EPA and the Corps rescind WOTUS, they will then work towards crafting their own version. In a Feb. 28 executive order, President Trump directed the agencies to consider interpreting the term "navigable waters" in the CWA “in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States,” a fractured Supreme Court decision from 2006 in which Scalia wrote for himself and three other justices that “the phrase ‘waters of the U.S.’ includes only . . . relatively permanent, standing or continuously flowing bodies of water.”
‘The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall,” he said.
Parrish argues that while the agencies should certainly consider the Supreme Court decisions interpreting the Clean Water Act, they should first look to the law itself, which says that “It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution.”
The agencies should “interpret the statute within the bounds of the Supreme Court’s precedents,” he said. AFBF and other farm groups are looking for a rewrite of the rule to provide “clarity and consistency” for farmers.
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