About half of the United States must follow the controversial 2015 Waters of the U.S. rule (WOTUS), while the other half does not, following an Aug. 16 ruling by a federal district court judge in South Carolina. (see related story on page 4)
But that picture could change, as another lawsuit initiated by the American Farm Bureau Federation is seeking a nationwide injunction against the rule.
That move is the latest in a “legal maze leaving many heads spinning in an effort to understand what ‘waters’ will need Section 404 permits,” says Larry Liebesman, a senior adviser with water-resource consulting firm Dawson & Associates. Liebesman is referring to a Clean Water Act provision that covers permits for construction in and around certain bodies of water.
In the latest major turn in the controversial regulation’s complex story, U.S. District Court Judge David C. Norton on Aug. 16 vacated the Trump administration’s January suspension of the 2015 WOTUS because administration officials didn’t provide “meaningful opportunity to comment,” on the suspension.
In the decision, Norton—nominated to the federal bench in 1990 by President George H.W. Bush—wrote, “To allow the type of administrative evasiveness that the agencies demonstrated in implementing the Suspension Rule would allow government to become ‘a matter of the whim and caprice of the bureaucracy’.”
'Green' groups cheer
The Southern Environmental Law Center, Charlottesville, Va., brought the lawsuit on behalf of several environmental groups, including American Rivers and the National Wildlife Federation, all of which cheered the ruling.
“I am very heartened by this decision and the recognition that the administration just utterly failed to provide the citizens of the U.S. with the meaningful opportunity for public comment on a rule, which is binding law,” says Jan Goldman-Carter of the National Wildlife Federation.
American Rivers, however, also warned that the ruling isn’t the end of the fight. It said that ultimately, Congress, the U.S. Supreme Court or a new administration will have to resolve the issues around the water rule.
A U.S. Dept. of Justice spokesman said on Aug. 17 that the agency was “currently reviewing the opinion and considering next steps.”
The Trump administration suspended the three-year-old regulation after a U.S. Supreme Court ruling earlier this year effectively dissolved a 2016 nationwide stay of the rule.
Because some states were still under an injunction against the rule issued by a different district court, the administration quickly implemented a suspension of the rule so it would not be implemented piecemeal across the nation.
But that’s exactly what has happened following Norton’s Aug. 16 ruling, with 26 states under the 2015 rule and 24 still under district court injunctions.
The water regulation is in effect in California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia and Washington.
WOTUS was issued jointly by the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers and sought to clarify which wetlands and streams were subject to federal regulatory jurisdiction—an issue that has remained murky even after past Supreme Court rulings.
Opponents of the regulation, including construction interests and farmers, contend that it is an example of federal overreach.
Those same interests on Aug. 17 asked a Texas federal district court for an immediate nationwide injunction against the WOTUS rule.
“The WOTUS rule’s now-piecemeal application compounds these far-reaching and deleterious effects,” according to the filing. “Plaintiffs’ members must sort out which regulatory regime applies to which activities under which circumstances—a particularly troubling prospect given that their members manage construction, extraction and farming projects across multiple states, creating conflicting permitting obligations.”
The filing added, “Important and consequential national regulations like the WOTUS rule should not apply differently depending on the happenstance of location. A crazy-quilt regulatory environment is simply untenable.”
In the meantime, Liebesman—a former senior Justice Dept. trial attorney—recommends that permit applicants work closely with agencies and not assume that just because they are working in a state where WOTUS is not in effect, that they are safe from litigation.