The Waters of the United States (WOTUS) rule published by the U.S. Environmental Protection Agency in June 2015, which would have extended EPA and Army Corps of Engineers wetlands jurisdiction to developments and building sites thousands of yards away from any streams or rivers, has been tied up in federal court from day one (see: "EPA Wetlands Rule Bogged Down in Courts," Coastal Contractor 9/8/15). The rule was stayed in all 50 states by an October 9, 2015, ruling of the U.S. Court of Appeals for the Sixth Circuit. Now, with the newly elected Trump administration's EPA pick, Oklahoma Attorney General Scott Pruitt, pledging to kill the rule, the Supreme Court has agreed to take up the question of lower court jurisdiction in the many lawsuits filed last year to block the rule's implementation. The Supreme Court's intervention gives the Trump administration and the Republican majority in Congress time to consider how they can eliminate the EPA rule, and how—or whether—to replace it.

Congress-watching website The Hill had this commentary (see: "U.S. Supreme Court’s 'Waters of the U.S.' gift to the Trump administration," by Larry Leibesman). "While the Supreme Court will resolve whether the WOTUS rule can only be challenged in federal courts of appeals, not federal district courts, the Court’s granting of review eliminates a major burden on the Trump administration," notes The Hill. "Justice Department officials will not need to file further briefs on WOTUS’ merits until the High Court’s ruling on jurisdiction, which is expected next year." For now, although the incoming administration has taken steps to restrict activity on the EPA website, the agency's pages on the WOTUS rule are still posted at the site (see: "The Final Clean Water Rule").

The Supreme Court has already ruled that Army Corps of Engineers determinations of jurisdiction over private property are subject to federal court review. The case involved a Minnesota peat mining company, Hawkes, which wanted to avoid filing a wetlands permit for its operations (see: "United States Army Corps of Engineers v. Hawkes Co., Inc. - SCOTUSblog). The Supreme Court kicked the case back to the Circuit Court, which has now found in Hawkes' favor on the merits, reports the High Plains/Midwest Ag Journal (see: "Landowner wins case against Army Corps").

Interestingly, President Trump himself has skin in the game when it comes to the EPA's water pollution rule, as NPR reported (see: "Trump's Supreme Court Nominee Could Hear Case Affecting Trump Golf Courses," by Greg Allen). "Donald Trump is not only the U.S. president; he's also a golf industry giant. And like other golf course operators, he has a stake in the legal wrangling over a new environmental rule that could dent industry profits," NPR reported. "Here's where Trump is different from his peers: He gets to name the head of the Environmental Protection Agency, and this week, the president may appoint a nominee to the U.S. Supreme Court, which soon will hear a case involving the [Waters of the United States] environmental rule."

Eliminating a rule can be as hard as creating one: "Repealing a rule requires a full public process and has to be justified by the law and the evidence available. And in the case of the clean water rule, that's going to be rough sledding for the Trump administration," Jon Devine, an attorney with the Natural Resources Defense Council, told NPR. But all that labor may not be necessary, the network reported: "With the threat of a presidential veto gone now, opponents of the rule are hoping Congress takes action to kill the rule. This month, Republican Sens. Joni Ernst from Iowa and Deb Fischer from Nebraska introduced a resolution to begin that process."

STATE BY STATE

Oklahoma: A shakeup may be in store for Oklahoma's building code agencies. A state lawmaker has proposed folding the state's agency that approves building code updates into the agency that licenses contractors. But the state's builders aren't on board yet (see: "Oklahoma Lawmaker: Uniform Building Code Commission Staff Unnecessary" - Insurance Journal; and: "State rep., home builders working with Uniform Building Commission Code," by Adam Troxtell - Norman Transcript).

Louisiana: State officials are asking FEMA for a three-month extension of the deadline to file flood insurance claim paperwork related to last August's record-setting floods (see: "Louisiana asks FEMA to extend flood loss deadline," by David Hammer - WWLTV).

Wisconsin: Builders and firefighters are facing off over building code revisions that would ease fire sprinkler, GFCI, and AFCI requirements in Wisconsin. As always, firefighters argue that the safety devices save lives, while builders say the devices raise housing costs and that new homes are already safe enough (see: "Fire chiefs oppose easing of rules," by Julian Emerson - Leader-Telegram).

Colorado: The state legislature is tackling construction litigation reform—again. The goal is to make condominium construction viable in the state again by reducing the risk of major lawsuits targeting condo developers and contractors. The Colorado Statesman has a report (see: "Lawmakers breathe deep, cross fingers, take up thorny construction-litigation reform debate," by John Tomasic). This year's state Senate bill "looks very similar to failed efforts from the 2014 and 2015 sessions," reports the Denver Business Journal, but the bill's Republican sponsors are hoping to persuade Democratic counterparts to back the effort this time (see: "Republicans introduce construction-defects reform bill in Legislature -- and it's got a familiar ring," by Ed Sealover).