JUDICIAL:
PUGET SOUNDKEEPER ALLIANCE, et al., Plaintiffs, v. ANDREW WHEELER, et al., Defendants, & AMERICAN FARM BUREAU FEDERATION, et al., Intervenor-Defendants., No. C15-1342-JCC, 2018 WL 6169196 (W.D. Wash. Nov. 26, 2018); This matter comes before the Court on Plaintiffs’ motion for summary judgment and Defendants’ cross-motion for summary judgment. Having thoroughly considered the parties’ briefing and the relevant record, the Court finds oral argument unnecessary and hereby grants in part and denies in part Plaintiffs’ motion for summary judgment and grants in part and denies in part Defendants’ cross-motion for summary judgment.
The objective of the Clean Water Act (the “CWA”) is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251. The CWA applies to “navigable waters,” which are defined as “waters of the United States, including the territorial seas.” 33 U.S.C. §§ 1251(a)(1), 1362(7). The scope of the regulatory definition of “navigable waters” has been the subject of several Supreme Court opinions.
In 2015, the U.S. Army Corps of Engineers (the “Corps”) and the Environmental Protection Agency (the “EPA”) (collectively, the “Agencies”) issued a final rule defining the jurisdictional scope of the CWA. Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg. 37,054 (Jun. 29, 2015) (to be codified at 33 C.F.R. pt. 328) (the “WOTUS Rule”). The WOTUS Rule sought to make “the process of identifying waters protected under the CWA easier to understand, more predictable, and consistent with the law and peer-reviewed science….” The WOTUS Rule became effective on August 28, 2015.
Following multiple legal challenges to the WOTUS Rule across the United States, the Sixth Circuit issued a nationwide stay of the WOTUS Rule in October 2015. In February 2016, the Sixth Circuit separately held that it had original jurisdiction over challenges to the WOTUS Rule. In January 2018, the United States Supreme Court reversed the Sixth Circuit and held that challenges to the WOTUS Rule must be brought in federal district courts. The Sixth Circuit subsequently vacated its nationwide stay.
While the Supreme Court considered the Sixth Circuit’s jurisdictional ruling, the Agencies proposed a rule that would add an applicability date to the WOTUS Rule. The proposed rule would delay the effect of the WOTUS Rule for two years from the date that final action was taken on the proposed rule, in order to maintain the status quo and provide regulatory certainty in case the Sixth Circuit’s nationwide stay was vacated. The Agencies solicited comments on only the issue of whether adding an applicability date would be desirable and appropriate, and expressly did not solicit comments on the merits of the pre-2015 definition of “waters of the United States,” or on the scope of the definition that the Agencies should adopt if they repealed and revised the WOTUS Rule.
In February 2018, after holding a 21-day comment period on the proposed addition of an applicability date, the Agencies published a final rule adding an applicability date to the WOTUS Rule, which would suspend the effectiveness of the WOTUS Rule until February 2020.
In May 2018, Plaintiffs filed a first amended and supplemental complaint for declaratory and injunctive relief, which added claims against the Applicability Date Rule. Plaintiffs move for summary judgment on these claims. Intervenor-Defendants have filed an opposition to Plaintiffs’ motion for summary judgment and Defendants have filed a cross-motion for summary judgment.
Regulatory:
Final rule: Rural Utilities Service, USDA.The Rural Utilities Service (RUS), a Rural Development Agency of the United States Department of Agriculture (USDA), hereinafter referred to as RUS or the Agency, is issuing a final rule to amend its regulations to address its “Buy American” requirement. This will codify long-standing RUS requirements which Agency borrowers have been required to follow pursuant to statute, bulletin, and contract as early as the 1950s. RUS will rescind Bulletin 43-9:344-3, “ `Buy American’ Requirement,” when this regulation becomes effective. Info HERE
Notice: Environmental Protection Agency (EPA); The Environmental Protection Agency (EPA) has submitted the following information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA): “Certification of Pesticide Applicators (Renewal)” and identified by EPA ICR No. 0155.13 and OMB Control No. 2070-0029. This is a request to renew the approval of an existing ICR, which is currently approved through November 30, 2018. EPA did not receive any comments in response to the previously provided public review opportunity issued in the Federal Register on April 27, 2018. With this submission, EPA is providing an additional 30 days for public review and comment. Info HERE
Legislative:
S. 140: A bill to amend the White Mountain Apache Tribe Water Rights Quantification Act of 2010 to clarify the use of amounts in the WMAT Settlement Fund. Passed Senate with Changes (back to House) on Nov 14, 2018 Info HERE
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