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Federal Court Rules Against EPA on WOTUS Applicability Date

Posted By Ariel Hill-Davis, Friday, August 17, 2018

Yesterday, the United States District Court in South Carolina issued a nationwide injunction against the Environmental Protection Agency's (EPA) Waters of the United States (WOTUS or the 2015 rule) Applicability Date Rule. The court found that the EPA violated rule-making procedures in finalizing a rule to push the implementation date of the 2015 rule back to 2020. The Applicability Rule was the EPA's attempt to ensure continuity of standards across the country while the new definition is finalized, in the face of the Supreme Court decision which overturned the nationwide stay of the 2015 Rule. Thursday's decision, in effect, creates a regulatory patchwork related to the WOTUS. There are 26 states that will now operate under the 2015 Rule, while 24 states still have injunctions against the 2015 Rule. 

The EPA is currently in the process of finalizing the full repeal of the 2015 Rule, but the ruling in South Carolina creates a situation of extreme regulatory uncertainty related to the Clean Water Act. Additionally, there is still the slim possibility that WOTUS could be repealed legislatively as the Banks Amendment is attached to the House Farm Bill. The Farm Bill will be going through conference this fall, so there is a chance, albeit a small one, that the repeal could happen legislatively rather than through the EPA. IMA-NA and other stakeholders are working to get decisions as quickly as possible. 

This court decision could cause serious problems for companies, organizations, and individuals working through a permitting process in any of the 26 states now functioning under the 2015 Rule. If you already are holding water permits in these 26 states, this will not cause immediate impacts, but the process is likely going to become more complicated and difficult as states are forced to comply with the old WOTUS rule. Below is the list of the 26 states impacted by yesterday's decision. 

  1. California
  2. Connecticut
  3. Delaware
  4. Florida
  5. Hawaii
  6. Illinois
  7. Iowa
  8. Louisiana
  9. Maine
  10. Maryland
  11. Massachusetts
  12. Michigan
  13. Minnesota
  14. New Hampshire
  15. New Jersey
  16. New York
  17. Ohio
  18. Oklahoma
  19. Oregon
  20. Pennsylvania
  21. Rhode Island
  22. Tennessee
  23. Texas
  24. Vermont
  25. Virginia
  26. Washington

Tags:  Clean Water Act  court  EPA  injunction  Regulations  wotus 

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