The Waters of the United States Rule

THE WATERS OF THE UNITED STATES RULE UNCERTAINTY IN REACH AND TIMING

ADMINISTRATIVE DEVELOPMENTS •April 11, 2018: EPA and the Army Corps of Engineers sent a new repeal proposal to the Office of Management and Budget (OMB) for review •Content of the proposed rule is not publicly known, but rumors are that the intent is to strengthen the legal basis for repeal of the 2015 Action to Repeal the 2015 Rule •Agencies received thousands of comments before the end of the first comment and have decided to issue a supplemental proposal to provide the public with additional clarity on the scope of the agencies’ efforts and provide an additional opportunity for comment •Trump administration had previously announced April 2018 as its target date for final action on repeal of the 2015 Rule •Lee Forsgren, EPA Deputy Administrator for the Office of Water, announced at a conference on March 19, 2018, that the expected timeframe to publish the proposed rule to replace the 2015 Rule is now Summer of 2018 •In 2017 Administrator Pruitt indicated that he expected to propose the replacement rule in April 2018 •August 28, 2017 the agencies announced public meeting dates and established an administrative docket to solicit recommendations for the revised definition of WOTUS •Docket closed on November 28, 2017 Action to Replace the 2015 Rule •February 6, 2018, the EPA and Corps published a final rule (83 FR 5200) adding an applicability date of February 6, 2020 to the 2015 Rule •The extended applicability date for the 2015 Rule is intended to give the agencies time needed to reconsider the definition of WOTUS Action to Delay Applicability Date of 2015 Rule Obama-era Clean Water Act jurisdiction rule (2015 Rule) in anticipation of expected litigation •Supplemental repeal proposal is expected to include an additional 30-day public comment period •Agencies first proposed repeal of the 2015 Rule was published on July 27, 2017, 82 FR 34,899

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JUDICIAL DEVELOPMENTS

Challenges of the 2015 Rule must be in federal district courts • In a unanimous opinion the U.S. Supreme Court ruled that lawsuits challenging the 2015 Rule must be filed in federal district courts rather than federal courts of appeal. The decision in National Association of Manufacturers v. Department of Defense et al ., No. 16-299 (January 22, 2018) is limited to jurisdiction and does not reach the merits of the 12015 Rule. Following the Supreme Court’s ruling litigation on the 2015 Rule is moving forward in several federal district courts, including the Southern District of Texas.

Challenges to the CWA Rule delaying applicability of the 2015 Rule • Litigation is pending in several federal district courts over the legality of the two-year delay on enforcement of the 2015 Rule. On April 5, 2018, a district judge for the District of South Carolina denied requests from the U.S. Department of Justice (DOJ) and various industry groups to send the “delay case” to the southern district of Texas setting the stage for potential parallel rulings on the merits of the delay that could ultimately require the Supreme Court to decide. In the delay cases the DOJ is arguing that the 2015 Rule and the delay should be litigated in the same court.

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CONTACT

SARA M. BURGIN Partner, Austin sara.burgin@bracewell.com +1.512.494.3654

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