If you have been following my blog, you will already know that The Clean Water Rule is the new regulation re-defining Waters of the United States. “The Rule” is found in the Federal Register, Vol. 80, No. 124, Monday, June 29, 2015. “The Rule” became effective 60 days later on August 28, 2015, until October 9, 2015, when the U.S. Court of Appeals for the Sixth Circuit ordered a nationwide stay.
Here is a list of these objections to the Clean Water Rule. They range from the legal procedural development of the regulation to the science behind it.
1. [The Clean Water Rule] granted too much federal jurisdiction over what has previously been thought of as state-controlled waters. [Look back to my blog regarding the Rivers & Harbors Act of 1890 and 1899 where compromises were made to recognize state authority over interstate waters.] Here it is thought that the agencies are exceeding the Clean Water Act (CWA) authority and The Rule is inconsistent with CWA’s plain language.
2. [The Clean Water Rule] was not in line with existing precedent. This is certainly a debatable point since there have been calls on both sides to clarify previous confusing court decisions.
3. The adoption [of The Clean Water Rule] failed to follow mandatory federal rule-making procedures. Some argue there were substantial changes to the proposed rule without additional public comment before the final rule was released (most specifically the “arbitrary” distances in section (a8) of The Rule). Therefore, the final rule was not a “logical outgrowth” of the proposed rule. The agencies failed to make all information relied upon available to the public, and failed to respond appropriately to comments.
4. There are also concerns regarding constitutional violations of the Commerce Clause, the Tenth Amendment (State’s Rights), and the Due Process Clause
5. Miscellaneous other violations of several acts: Regulatory Flexibility Act; Unfunded Mandates Reform Act; National Environmental Policy Act; Anti-Lobbying Act (agencies pushing the boundaries of social media in informing the public of The Rule); and Executive Orders.
Court decisions (specifically the U.S. District Court for the District of North Dakota) so far have listed several objections to the Clean Water Rule:
1. Tributary definition TOO broad.
2. No evidence of connectivity of adjacent waters to traditionally navigable waters.
3. Lack of scientific support for The Rule; making it arbitrary or capricious.
So, when will we know one way or the other if The Clean Water Rule will become law, again? It is my understanding that it could be weeks or even months before the U.S. Court of Appeals for the Sixth Circuit announces a decision regarding who (the District Courts OR the Circuit Court of Appeals) has the jurisdiction to hear the court cases brought against the EPA . Compliance issues with the Administrative Procedure Act are what is being reviewed with this question. [Oral arguments were presented December 8, 2015.] With the stay in place [which all parties and the court agreed the circuit court has the authority to issue], there is no rush for a decision.
So we wait on the next judicial move…..
Society of Wetland Scientists, Clean Water Rule Workshop, Memphis, Tennessee, October 8, 2015
ASWM Guest Blog: Plot Twist: Sixth Circuit Stay of the Long-Awaited Clean Water Rule Makes a Potential “Happily Ever After” A Bit More Elusive - by Professor Kim Diana Connolly, SUNY Buffalo Law School, October 23, 2015
Webinar: Legal Challenges to the Clean Water Rule: Which Court? What Questions? What Timeframe?, Association of State Wetland Managers, Thursday, November 19, 2015, Panelists were Roy Gardner, Professor of Law and Director, Institute for Biodiversity Law and Policy, Stetson University College of Law and Kim Diana Connolly, Professor, Director of Clinical Legal Education, Vice Dean for Legal Skills, SUNY Buffalo Law School.
Does the Court of Appeals have Jurisdiction to Review the Clean Water Rule? Sixth Circuit Court of Appeals to Hear Arguments Tomorrow, Kathy Milenkovski, December 7, 2015
Sixth Circuit Hears Arguments Over Its Jurisdiction to Decide WOTUS Challenge, By Katerina E. Milenkovski, Published: January 5, 2016