By Sarah Everhart
The article is not a substitute for legal advice. See here for the site’s reposting policy.
Regular readers of this blog will not be surprised to read that there is a new twist in the saga of the implementation of the Waters of the United States (WOTUS) rule. For those unfamiliar with the WOTUS rule you can read it here.
In a nutshell, the federal Clean Water Act (CWA) prohibits the discharge of pollutants from any point source into navigable waters (defined as WOTUS) without a discharge permit. In the 1980s the Environmental Protection Agency (EPA) adopted a regulatory definition of WOTUS and again in the early 2000s there were a number of judicial decisions on the subject which led to EPA issuing further interpretations of WOTUS (read more about that background here). In an effort to eliminate confusion, in 2015 EPA promulgated a new definition of WOTUS and legal battles claiming EPA exceeded its authority ensued.
Although WOTUS did not alter any of the exemptions for agricultural activities in the CWA many farm groups felt the expanded definition would have a negative impact on agriculture.
As we explained in this past post the cases filed to challenge WOTUS were consolidated in the federal 6th Circuit Court of Appeals and the Court issued an injunction of the WOTUS rule. The 6th Circuit Court of Appeals ruled it had jurisdiction to hear cases from across the country and that decision was then appealed to the U.S. Supreme Court.
On January 22, 2018, the U.S. Supreme Court ruled that the federal appeals courts did not have original jurisdiction to review the WOTUS rule, and that challenges must continue to be filed in the federal district courts. The Supreme Court’s decision led to the 6th Circuit’s injunction being vacated.
On February 6, 2018, the EPA published a rule in the Federal Register known as the Suspension Rule the effect of which was to delay the WOTUS rule until 2020, and in the interim the controlling interpretation of “waters of the United States” was that prescribed by the 1980s regulation which had been in place prior to the WOTUS rule. Typically when rules and regulations are published in the Federal Register public comments are solicited and reviewed prior to the finalization of the regulation.
On August 16, 2018 the U.S. District Court of the District of South Carolina ruled the EPA violated the Administrative Procedure Act by failing to seek public comment on the Suspension Rule. According to the decision, the text of the Suspension and the EPA Memorandum for the Record on the Suspension Rule Rulemaking Process made it clear that the agencies did not solicit any comments on the merits of the WOTUS rule or the merits of the 1980s regulation before issuing the Suspension Rule. This recent decision means the EPA’s attempt to delay the 2015 WOTUS rule was no longer effective in 23 states: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia and Washington.
The remaining 27 states are not subject to the 2015 WOTUS rule and are instead subject to the previous definition of WOTUS due to injunctions issued by U.S. District Courts in North Dakota, Georgia and Texas preventing the 2015 WOTUS rule from going into effect. As the legal battles continue to unfold in other US. District Courts there are bound to be future changes so keep reading this blog for further updates!