What Are The Next Steps on WOTUS?

2017-01-23 | , GCSAA - January 2017

The election of Donald Trump as our nation’s 45th President has broad implications for the final disposition of the Clean Water Rule, also known as “WOTUS”.   The Clean Water Rule has been on hold nationwide since October 2015 and its fate has long appeared to rest on whether courts would uphold it.  Efforts in Congress to either nullify or defund it had always failed while Barack Obama held the veto pen.  However, with Donald Trump in the White House, the options for eliminating the Clean Water Rule have expanded greatly.

 

Before discussing Trump, here is an overview of the areas where action has occurred recently: 

 

The courts.  Much of the litigation challenging the Clean Water Rule has been consolidated before the 6th Circuit Court of Appeals, per a ruling by a three judge panel.  Until recently, it was expected that this is where a decision on the merits of the rule would happen.  However, a decision by the United States Supreme Court on January 13th has thrown doubt on this.  The Supreme Court granted a request by the National Association of Manufacturers and other petitioners to review the 6th Circuit’s jurisdictional decision, which it will do before the end of its term.  This is a procedural question only:  Does jurisdiction over the Clean Water Rule belong with the 6th Circuit or does it belong to the lower level district courts?  Still, it delays a final decision on the merits of the rule till the summer, at the earliest. 

 

Congress.  Congress has made a number of efforts in the past to either defund the Clean Water Rule or kill it outright.  As we noted above, legislation to do so has never been signed into law.  With Trump in the White House, the chance of final passage of such legislation has increased.  That explains why even though the 115th Congress has only been in session a few days, anti-Clean Water Act legislation has already been introduced.  For example, Senators Deb Fisher (R-NE) and Joni Ernst (R-IA) have introduced a Sense of the Senate Resolution that the Clean Water Rule should be vacated.  S.Res. 12, among other things, cites a number of concerns with the rule-making process behind the Clean Water Rule - similar to concerns raised by the GCSAA – regarding the failure to work with other stakeholders to adequately consider alternative proposals.  It would not have the force of law if passed.  However, it sends a strong message to the incoming Trump Administration that the Clean Water Rule cannot be allowed to stand.

 

All of this leads to the question of what will happen after January 20th.  Donald Trump’s win increases the chances that the Clean Water Rule can be ended.  The same legislation that Barack Obama threatened to veto, Donald Trump would sign.  Or his Administration could respond to a negative court decision on the Clean Water Rule by simply deciding not to appeal.  Finally, he could repeal it outright and then issue a replacement.  We don’t know yet which route Trump will follow, but we will continue to monitor any decision to gauge how it will impact golf.