WOTUS Now in Effect in 26 States

MINNEAPOLIS (DTN) -- The 2015 waters of the United States, or WOTUS, now is in effect in 26 states after a federal judge in South Carolina issued a nationwide injunction on a recent EPA rule that delayed the implementation of the Obama-era regulation.

The legal wrangling that has occurred since Obama's EPA finalized the 2015 rule still leaves the nation divided on the Clean Water Act rule, with the rule in effect in some states but not in others. The rule redefined which wetlands and small waterways are covered by the Clean Water Act. Many farmers and ranchers feared the change would lead to increased government regulation of their land.

A federal judge in the U.S. District Court for the District of South Carolina ruled on Thursday that the EPA did not follow the Administrative Procedures Act in finalizing its rule to delay the 2015 WOTUS for two years. That action by EPA was designed to allow the agency to complete a rewrite of WOTUS. A proposed new definition of WOTUS currently is under review by the Office of Management and Budget.

After EPA finalized its rule to delay WOTUS in February, several environment groups and states sued the agency, arguing it had rushed the rulemaking process.

In his ruling, Judge David Norton sided with the environmental groups and states, saying the text of the proposed suspension rule and the EPA memorandum for the record on the suspension rule rulemaking process made it clear the agency did not solicit any comments on the merits of the WOTUS rule or the merits of the 1980s regulation that EPA's suspension rule returned WOTUS to before the agency issued the suspension rule.

"The agencies refused to engage in a substantive reevaluation 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 judge said in his ruling.

With the ruling on Thursday, the 2015 rule now is in effect in Iowa, Illinois, California, Washington, Oregon, Tennessee, Texas, Vermont, Virginia, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, Mississippi, Minnesota, Michigan, Massachusetts, Maryland, Maine, Louisiana, Hawaii, Delaware and Connecticut.

Because of court actions in other cases, the 2015 rule remains on hold in Georgia, Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, Utah, West Virginia, Wisconsin, Kentucky, South Dakota, Missouri, Alaska, North Dakota, New Mexico, Idaho, Arizona, Nebraska, Montana, Arkansas, Nevada, Colorado and Wyoming.

The suspension rule would have given the agency until 2020 to complete a rewrite of WOTUS. Following the court decision on Thursday, it reverts back to the U.S. Supreme Court ruling that found appeals courts do not have jurisdiction on the WOTUS issue. Instead, that jurisdiction lies with the district courts, the Supreme Court ruled. Two district court decisions wiped out the 2015 rule in the 24 states, leaving the remaining 26 states where the rule remains in effect.

American Farm Bureau Federation President Zippy Duvall said in a statement to DTN that the recent court action means the EPA needs to act quickly.

"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," he 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. The delay 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. Today's 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."

The National Cattlemen's Beef Association also issued a statement Thursday afternoon warning that the court's ruling means WOTUS remains a threat for farmers and ranchers.

"Today's ruling underscores the urgent need to finalize the repeal of the 2015 Waters of the United States (WOTUS) rule," NCBA Chief Environmental Counsel Scott Yager stated in a news release Thursday. "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."

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

(AG)

Copyright 2018 DTN/The Progressive Farmer. All rights reserved.