Jackson Kelly PLLC

Energy and Environment Monitor

The Murky "Waters of the United States" Just Got Muddier

August 22, 2018

By: Blair M. Gardner

          When I wake up and listen to National Public Radio report about a federal district court’s injunction of an EPA regulation, I conclude that someone besides a lawyer believes the decision is important.  What was decided by the federal district court in Charleston, South Carolina on Thursday, August 16 was significant, but for a reason not reported.

          Defining the “waters of the United States” (WOTUS) has been among the most contentious environmental issues of the last quarter century. The existence of a jurisdictional water authorizes the EPA and the Corps of Engineers to require a Clean Water Act (CWA) permit for anyone who proposes to discharge into or fill the water. From 1982 until 2015, it was defined by regulations that were both broad and applied with an increasing reach, notwithstanding two Supreme Court decisions in 2001 and 2006 that cautioned the agencies about potential overreach. In 2015, the Obama Administration ignored these decisions and proposed a new definition that further extended the reach of the CWA.

          Broad coalitions of land users – farmers and ranchers, home construction companies, miners and manufacturers – immediately rushed to challenge it. A corresponding number of environmental and citizen groups naturally supported it. The first issue to be decided, whether a district of circuit court had the authority under the CWA to consider the challenge, was finally decided by the Supreme Court in January 2018 (Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617). The federal district court for North Dakota had previously enjoined the WOTUS rule when 13 states initially challenged it in 2015. In June a federal court in Georgia extended the injunction to an additional 11 states so that in 24 states, mostly in the West and South (including Indiana, Kentucky and West Virginia), the 2015 rule has no legal effect.

          In 2017, the EPA proposed that it undertake new rulemaking on the definition of WOTUS. In a November rulemaking, later updated in February 2018, the agency proposed that any new definition would be given effect in two years, February 2020. In the interim, the rulemaking provided that the previous 1982 definition would govern. EPA asked for limited comment on its proposal to wait for two years to make any new rule binding.  The environmental groups pounced on this proposal immediately by filing suit in the federal district court in Charleston, South Carolina.

          The district court’s August 16 decision does not adjudicate the merits of the 2015 WOTUS rule or the previous regulatory definition. Instead, the court specified that EPA, in announcing its plan to reimpose the old definition and commence a new rulemaking, had violated the Administrative Procedures Act. The district court found that EPA had both impermissibly restricted the scope of what comments it would receive as well as the time in which the public could comment on its proposal. The legal effect is that EPA’s action to delay the 2015 WOTUS rule has been set aside.  The 2015 rule remains in effect.

          Finally, the district court imposed its injunction nationally and not just in South Carolina. With the federal district courts in North Dakota and Georgia having already enjoined the 2015 WOTUS rule in 24 states, the South Carolina court has effectively reinstated its use in the remaining 26 states. So, the country is now divided – literally – by states in which the 1982 definition applies, and those in which the 2015 WOTUS rule is in effect.

 

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