August 20, 2018

2015 Waters of the United States Rule Reinstatement Leaves Industry Operating Under Patchwork of Regulations

The controversial Obama-era Waters of the United States Rule (2015 WOTUS Rule) was reinstated after a federal judge in the U.S. District Court for the District of South Carolina vacated the Trump Administration’s suspension on August 16, 2018. South Carolina Coast Conservation League v. Pruitt, case No. 2:18-cv-00-330 (Aug. 16, 2018) [the Order]. The ruling leaves industry members operating under a patchwork of regulations, with 26 states subject to the 2015 WOTUS Rule and 24 exempt.

Judge David C. Norton ruled that although “[a]s administrations change, so do regulatory priorities,” the Trump Administration failed to comply with the requirements of the APA in its suspension of the 2015 WOTUS rule.

While the South Carolina Order is not explicitly limited to particular states, the practical impact of the Order is that only about half the states will be subject to the 2015 WOTUS Rule. This is because federal courts in North Dakota and Georgia had previously enjoined the Rule. The result is that the more expansive 2015 WOTUS Rule will be reinstated in 26 states: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia and Washington.

In the remaining states, it is still enjoined. In March 2018, the U.S. District Court for the District of North Dakota issued a preliminary injunction of the 2015 WOTUS Rule in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming. North Dakota v. U.S. EPA, Case No. 3:15-cv-00059 (Mar. 23, 2018). The U.S. District Court for the Southern District of Georgia issued a preliminary injunction of the Rule for Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah, West Virginia, and Wisconsin. Georgia v. Pruitt, Case No. 2:15-cv-00079 (Jun. 8, 2018).

The 2015 WOTUS Rule had defined Waters of the United States (a Clean Water Act term) more broadly than the previous rule, classifying tributaries and adjacent waters to sweep more streams, wetlands, and other areas into Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers jurisdiction. Many stakeholders have voiced concerns about the expansive scope of the 2015 WOTUS Rule, including the agricultural industry and manufacturers. Many states have also expressed apprehension that it infringes on state rights.

An appeal of the Order is anticipated. The injunctions in Georgia and North Dakota are preliminary, so the courts will also return to those cases on the merits.

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