• Mark Ryan

The WOTUS Replacement Rule is Expected Out Soon.

The WOTUS rule went to OMB for review in December, so I suspect we'll be seeing a final rule out of EPA and the Corps later this month. Major rulemakings such as this typically go final 60-90 days after promulgation, so there will be a bit of a window before it goes into effect. Expect numerous challenges by the states, tribes and enviro groups. Because the new replacement rule is based largely on Scalia (assuming it doesn't change dramatically from the draft), and since the 11th Cir. has held that you can't use Scalia as the sole basis for asserting jurisdiction, expect at least one challenge in that Circuit. No Circuit has held that Scalia only applies, so the rule will face an uphill battle wherever it is challenged. My guess is EPA know this, and is focussing on getting before SCOTUS. With Kennedy gone, that might not be a bad strategy for them.

It's really interesting that no states or environmental groups attempted to stay the WOTUS repeal rule. I'm guessing that the frantic pace of new rulemakings has overwhelmed the opposition, and they're waiting for the final rule to seek an injunction.

The draft final rule stated expressly that it was not relying on science, but on the agencies' interpretation of the CWA and the Supreme Court precedent. This was obviously done to sidestep the considerable scientific record put together to support the 2015 rule. But by relying solely on the law, does EPA give up its Chevron deference? Courts defer to the scientific and technical expertise of the agencies. But will they defer to EPA's interpretation of Rapanos?

The Congressional Review Act is starting to loom large on the horizon. Congress can override new rules within 60 legislative days of the rule being submitted to Congress. What counts as a legislative day can vary quite a bit depending on how one interprets the rule, possibly pushing the review date well into the next Congress. This means that if Dems take the Whitehouse, retain control of the House and get just a few R votes in the Senate, new rules out of this administration could be reversed. That puts a lot of pressure on the EPA to move quickly to finalize as many rules as it can in the near future. I'm sure the folks in OGC are working overtime.

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