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ability to finance and develop new projects or perform mainte- add a"policy rider"to an appropriations bill prohibiting EPA nance on existing infrastructure and facilities.The Association's from spending funds to enforce the rule while,in the long term, members'construction and operations activities often require President Trump's Administration could pursue a new rulemak- various permits under the CWA.The agencies'expansion of ing to refashion the rule.The path(s)congressional Republicans jurisdiction by virtue of the revised WOTUS rule will result in choose to attack the rule will also depend on how the issue plays additional permit obligations for all CWA programs. out in the courts. Legal Challenges American Public Power Association Position On October 9,2015,the U.S.Court of Appeals for the Sixth Overall,the Association believes that the final rule is problemat- Circuit(Sixth Circuit)issued an order staying the WOTUS is because it would drastically expand the WOTUS jurisdiction rule nationwide,pending further order of the court.After the of EPA and the Corps,which would subject more utility proj- stay was issued,parties in the case filed motions to supplement ects and activities to CWA jurisdiction.This would mean that the administrative record. On September 22,2016,the Sixth some projects'permitting processes would be required to under- Circuit granted the business and municipal petitioners'motion go lengthier and costlier individual Section 404 permit proce- to hold the WOTUS briefing in abeyance pending resolution dures.It also would affect the applicability of,and compliance of the administrative record motions.Subsequently,the court with,other CWA programs,including National Pollutant Dis- issued its decision on the scope of the administrative record. charge Elimination System requirements for industrial wastewa- Briefing on the merits in the case have begun according to a ter and storm water,Section 311 requirements,and Section 401 revised schedule to be set by the court. certification,to name a few.As such,APPA supports legislative In a related matter,the National Association of Manufactur- measures that would direct EPA and the Corps to withdraw and ers(NAM)filed a writ of certiorari seeking U.S.Supreme Court re-propose the rule under certain parameters. review of the Sixth Circuit's decision holding that it has exclu- sive jurisdiction to decide the challenges to the WOTUS Rule under CWA§509(b)(1).NAM argued that jurisdiction should American Public Power Association remain at the local district court.The high court in a surprise Contacts move on January 13,2017,granted petitioners'request to re- Amy Thomas,Government Relations Director,202-467-2934/ consider the Sixth Circuit decision to hear legal challenges in the athomas@publicpower.org case.However,final outcome of the litigation is uncertain and the Trump Administration has signaled its plans to eliminate the Carolyn Slaughter,Director,Environmental Polity, WOTUS rule.The method and process the new administration 202-467-2943/cslaughter@publicpower.org would employ to rescind WOTUS is unclear at this time. The American Public Power Association is the voice of Congressional Action not-for-profit,community-owned utilities that power There were numerous unsuccessful attempts by congressional 2,000 towns and cities nationwide.We represent pub- Republicans in 2015 and 2016 to nullify the WOTUS rule or lic power before the federal government to protect the to direct EPA and the Corps to withdraw and re-propose it. In interests of the more than 49 million people that public each case,the Senate was the stumbling block.However,while power utilities serve,and the 93,000 people they em- Senate Republicans still lack a 60-vote majority to overcome ploy.Our association advocates and advises on electricity a filibuster of any legislative effort to roll back the rule in the policy,technology,trends,training,and operations. Our 115th Congress,they will not have to contend with a veto members strengthen their communities by providing as they did under President Obama. Outside of achieving a superior service,engaging citizens,and instilling pride in filibuster-proof vote to gut the rule, Republicans could take a community-owned power. two-pronged approach to preventing the rule from being im- plemented:in the short term,congressional Republicans could PublicPower.org 45 227