Last week, I reported that Judge Rosemary Marquez had vacated the Trump administration’s Navigable Waters Protection Rule. I also asked “what’s next”? EPA and the Army Corps have now answered that question, at least for the short run. In a brief announcement on EPA’s web page, EPA stated that:
the agencies have halted implementation of the Navigable Waters Protection Rule and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice.
As a result, the pre-2015 regime applies until EPA and the Corps promulgate what they have promised will be a durable rule that will be based on sound science, survive judicial review, and provide certainty in this long-confused area. It will also slice and dice, and lead to long-term world peace.
Of course, even before this blessed event comes to pass, if Judge Marquez addresses the plaintiffs’ other claims and strikes down the Trump era rule that repealed the Obama era WOTUS rule, then the Obama rule would come back into force – except that there are several challenges to the Obama rule that would come back to life at that point.
I just love this stuff. I can’t even think about it without smiling, in a rather bleak, depressed way.
this is what happens when the executive branch engages in legislative rulemaking. the only solution is to have Congress decide whether the CWA needs to be amended. The 1972 Congress did not intend to create federal jurisdiction over the waterbodies that WOTUS tried to address. Maybe the new science that EPA developed to support WOTUS will convince Congress to extend the reach of the CWA.