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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 Additionally, there is still the slim possibility that WOTUS could be repealed legislatively as the Banks Amendment is attached to the House Farm Bill.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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Court Rules Against 2015 WOTUS Rule

Posted By Ariel Hill-Davis, Monday, June 11, 2018

On Friday, June 8th, a federal judge in Georgia granted a preliminary injunction against the Obama administration's 2015 Waters of the United States rule. The ruling issued by Judge Lisa Godbey Wood for U.S. District Court for the Southern District of Georgia found that the 11 states, which filed the suit, have a substantial likelihood of winning their claims against the 2015 rule. The states included in the ruling are Georgia, Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, Utah, West Virginia, Wisconsin and Kentucky. These 11 states join the 13 states granted a preliminary injunction against the 2015 rule by the U.S. District Court for North Dakota Southeastern Division. Friday's decision means the 2015 WOTUS rule is effectively blocked in half the country.

This decision is important for several reasons, despite the fact the country is not currently operating under the 2015 WOTUS rule due to the applicability rule issued by the Trump Administration. The applicability rule, pushes the implementation date of the 2015 rule back to 2020, to buy Administrator Pruitt's EPA time to draft, propose and finalize their own interpretation of Waters of the United States. There are currently several challenges to the applicability rule and should one win, it would mean the 2015 rule could go into effect.  Judge Godbey's ruling will make these legal challenges to the applicability rule more difficult for proponents of the 2015 rule to win. This was also the first District Court ruling since the Supreme Court decided in January to give primacy to District Courts on WOTUS challenges.

As IMA-NA has repeatedly stated, the process of finalizing a more common sense WOTUS rule, based on cooperative federalism is going to be long and drawn out. Each action taken by the EPA is going to trigger legal challenges, so it is important to note the courts continue to rule against the 2015 rule as it builds a record in our favor. Below you can read the statement from the Waters Advocacy Coalition on Judge Godbey's ruling. 

 

“Today’s court ruling is validation for the thousands of farmers, ranchers, and small business owners across the country who have been speaking out against the 2015 WOTUS rule as too broad, confusing, and crippling to their livelihoods,” said Waters Advocacy Coalition spokeswoman Stephanie Genco. “Americans deserve a common-sense WOTUS rule that doesn’t require a team of lawyers and consultants to navigate a maze of federal regulations before building on their own property or plowing a field on their farms. While the 2015 Rule is now stayed in 25 states all together, the other half of the country is still in limbo. That is why the Waters Advocacy Coalition will continue to call on the Environmental Protection Agency and the Army Corps of Engineers to withdraw the unlawful 2015 rule and release a revised definition of Waters of the United States that affirms the intent of Congress under the Clean Water Act and provides a regulatory structure that supports both clean water and clear rules.”

 

Tags:  court  district court  injunction  legal  Regulations  wotus 

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