August 17, 2018
A South Carolina federal judge ruled that the Environmental Protection Agency and the Army Corps of Engineers improperly suspended the Obama Administration-era waters of the U.S. (WOTUS) rule. The ruling is now allowed to take effect in 26 states where the WOTUS rule has not been blocked in a court order.
This case arose out of the promulgation of a rule by the Trump Administration that suspended the 2015 clean water rule for two years. The Clean Water Act prohibits discharge of pollutants from a point source into “navigable waters” without a permit.
Previously, EPA’s WOTUS Applicability Date Rule, or suspension rule, prevented the 2015 WOTUS rule from going to effect until Feb. 6, 2020. The remaining 24 states are protected by other federal court injunctions against the 2015 rule (one in North Dakota that covers 13 states, and one in Georgia that covers 11 states).
The suspension rule was put in place to give the new Administration time to repeal and re-propose a more workable definition. On the same day that the suspension rule went into effect, environmental plaintiffs filed suit against the manner in which the suspension rule was enacted, saying it violated the Administrative Procedure Act (APA) because there was an insufficient public notice and comment period.
In his ruling, U.S. district Judge David Norton wrote, “The agencies refused to engage in a substantive re-evaluation of the definition of the ‘waters of the United States,’ even though the legal effect of the suspension rule is that the definition of ‘waters of the United States’ ceases to be the definition under the WOTUS rule and reverts to the definition under the 1980s regulation. The definition of ‘waters of the United States’ is drastically different under these two regulations.”
The ruling concluded, “As administrations change, so do regulatory priorities, but the requirements of the APA remain the same. The court finds that the government failed to comply with these requirements in implementing the suspension rule.”
Agricultural groups said the ruling reinforces why the Administration needs to take quick actions to limit the impact of this ruling.
“To avoid widespread uncertainty and potential enforcement against ordinary farming activities in these already-uncertain times, we call on the Administration to take immediate steps to limit the impact of this dangerous court decision,” American Farm Bureau Federation president Zippy Duvall said.
“The U.S. District Court for South Carolina was wrong to invalidate the agency’s ‘applicability rule’ that had simply delayed the effective date of the 2015 WOTUS rule,” Duvall explained. “The delayed rule would have maintained regulatory certainty and stability while the Administration completes its reconsideration of the 2015 rule and works to develop a new regulation to provide both clean water and clear rules.”
The most recent court ruling creates enormous regulatory uncertainty and risk for farmers, ranchers and others in the 26 states that are not already protected from the unlawful 2015 rule by previous court decisions, he added.
“While work continues to develop a commonsense and lawful solution, we urge the Administration to immediately take action in the courts to limit the scope of this injunction to South Carolina. We also urge the Administration to move as quickly as possible to a final decision to repeal the 2015 rule,” Duvall said.
In a statement, National Cattlemen’s Beef Assn. (NCBA) chief environmental counsel Scott Yager said the new ruling creates a “zombie WOTUS” and underscores the urgent need to finalize the repeal of the 2015 rule.
“The South Carolina court has effectively brought WOTUS back from the dead in 26 states, creating a zombie version of the 2015 rule that threatens the rights of farmers and ranchers across the country. NCBA will continue to fight in the courts and in Congress to kill the 2015 WOTUS rule once and for all,” he said.
The American Farm Bureau Federation and a broad coalition of business organizations have notified the federal district court in South Carolina they will appeal that court’s ruling. In a separate filing, the same coalition also notified a federal district court in Texas of the ruling by the court in South Carolina, urging the Texas-based court to issue a nationwide injunction against what they view is an "illegal" 2015 WOTUS rule.
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