solely within the state’s jurisdiction. In December 2016, the Corps
published a proposed water supply rule to set the Corps’ policy
interpretation in the regulations at COE-2016-0016. The comment
period continues to May 15. At this point, the regulation is in
proposed form only.
Unwinding Regulations
The Obama era rules are not easy to unwind. To amend or repeal
an existing rule, there will be notice and comment proceedings, and
the change is subject to judicial review. This can take years. Another
option is the Congressional Review Act, which allows a joint
resolution of disapproval preventing the rule from becoming final,
but must be done within 60 legislative days of the final rule. Another
likely option could be an Executive Order for an agency to review the
rule and “rescind or revise.” The criteria to rescind the CPP would
be that no EPA authority exists to regulate carbon dioxide emission
from power plants or possibly a revision that would be less reaching
into states’ rights.
The Congressional Review Act was used only once before the Trump
Administration for a rule in 2001 submitted by the Department of
Labor relating to ergonomics (Pub.L. 107-5.). It has been used 11
times as of April 3 by the Trump Administration, and an example
is the Stream Protection Rule. Initially, the rule was to apply only
to Appalachia coal mining but was applied nationwide with only
90 days of review on the more than 2,000 pages of rewrite of the
previous rule (Pub.L. 115-5.). The Bureau of Land Management
(BLM) Planning 2.0 rule was also disapproved under this procedure.
A map from Verleger’s presentation illustrates the possible areas
subject to federal jurisdiction under WOTUS-Waters of the U.S.
BLM Planning 2.0 would have centralized control and decision-
making over large portions of land, especially in the west, away from
its regional offices, to Washington, D.C. Many also questioned the
fast track that provided only 90 days for comment with no notice to
many stakeholders prior to enacting the rule.
In speaking with CEOs in January, the president said he would
“cut regulations by 75 percent, maybe more.” However, the federal
government does not work as quickly as the private sector in which
Trump has his experience, so only time with tell the final resolution
of these regulations.
Wick Corwin
A uniquely qualified neutral:
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Former trial judge and civil litigator
40 years of experience
Persistent, empathetic and insightful
Extensive ADR training
Specializing in the mediation
and arbitration of civil disputes
“Superb job . . . a great service to the parties.”
Steve Rufer - Fergus Falls, MN
“Fine work.”
Tom Traynor - Devils Lake, ND
701-541-0965
[email protected]
SPRING 2017
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