State Attorneys General Take Issue with Inclusion of Clean Water Rule in Proposed Reissuance of Nationwide Permits

The Attorneys General for Alabama, Georgia, Florida, Kansas, Michigan, Ohio, Oklahoma, South Carolina, Tennessee, West Virginia, and Wisconsin sent a comment letter to the Army Corps of Engineers contesting the inclusion of the Clean Water Rule (also known as the Waters of the United States Rule, or “WOTUS” Rule) in the proposed reissuance of certain nationwide permits issued under Section 404 of the Clean Water Act.

The Corps, in its proposal to reissue the permits, asked commenters to address “how the 2015 revisions to the definition of ‘waters of the United States’ might affect the applicability and efficiency of the proposed [nationwide permits].”  The state Attorneys General responded in their comments that, because the Clean Water Rule has been stayed by the Sixth Circuit, the Corps should “withdraw the Proposed Rule in its current form.”  The state Attorneys General argued that:

[T]he WOTUS rule exceeds the federal government’s authority under the Clean Water Act and the U.S. Constitution, infringes on the States’ right to manage their land and water resources under state law, and was promulgated in violation of procedural safeguards designed to ensure informed and lawful decision-making.

The Corps’ request for comment on the effect of the WOTUS Rule is inappropriate because the WOTUS Rule is stayed.  Under settled precedent, the stay “halt[s] or postpone[s]” the WOTUS Rule, including “by temporarily divesting [the WOTUS Rule] of enforceability.” Nken v. Holder, 556 U.S. 418, 428 (2009).  In other words, the stay “suspend[s] the source of authority to act” by “hold[ing] [the Rule] in abeyance.” Id. That means the U.S. Environmental Protection Agency and the Corps cannot require States to take any action related to the WOTUS Rule during the stay, including, for example, any changes to state obligations and requirements under the Clean Water Act related to the issuance of Section 404 permits.

As we have covered previously, the WOTUS rule would modify the extent of the Corps’ jurisdiction to require so-called “dredge and fill” permits under Section 404 of the Clean Water Act.  Correspondingly, the Corps’ nationwide permits, which authorize specific activities that the Corps believes to have minimal impacts on jurisdictional waters, will be applicable to a different scope of projects depending on whether the WOTUS rule is ultimately upheld in the courts.  The nationwide permits are important for many developers because they provide a fast-track path to permit approval compared to the individual permit process, which can be costly and time consuming.  The ongoing federal court litigation is unlikely to be resolved very soon, and until it is, we are likely to see more of these types of conflicts between the Corps and those seeking to block the WOTUS rule.

Image Courtesy of: U.S. Army Corps of Engineers, Savannah District used under Creative Commons license (no changes were made to the image).