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Controversial Clean Water Rule Revived in 26 States

On August 16, 2018, a federal court in South Carolina issued an injunction against the Trump administration’s efforts to delay the effective date of a controversial regulation known as the 2015 Waters of the United States Rule (the “2015 WOTUS Rule”) which defines what wetlands and other waters are regulated by the federal government.  The injunction means that the 2015 WOTUS Rule may go into effect in 26 states, including Maryland, Delaware, New Jersey, and Pennsylvania.  The Rule remains enjoined from going into effect in the remaining 24 states due to two previous injunctions issued by federal courts in North Dakota and Georgia.  The South Carolina court’s injunction represents the latest quagmire in the continuing saga of legal challenges and court decisions affecting implementation of the 2015 WOTUS Rule.

Waters of the United States

Under the Clean Water Act, the federal government has jurisdiction over “navigable waters,” which are defined as “waters of the United States.”  Defining exactly what constitutes “waters of the United States,” however, has been the subject of significant debate and litigation over the past 30 years.  In 1980, the U.S. Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) issued a regulation that defined the term “waters of the Unites States” as including interstate waters, certain other lakes, rivers, and streams, and wetlands adjacent to those waters, but excluding waters that are themselves wetlands.  Subsequent Supreme Court decisions suggested that a wetland could be subject to federal jurisdiction if it had a significant nexus to a traditional “navigable water.”  The EPA and the Corps amended the definition in 1986 and operated under the 1986 definition from 1986-2015.

In 2015, the EPA and the Corps promulgated the 2015 WOTUS Rule which defined waters of the United States more broadly than any previous definitions.  In general, the 2015 WOTUS Rule would classify many wetlands and intermittent streams that had not previously been subject to federal regulation as subject to EPA and Corps jurisdiction.  Many stakeholders, including farmers, manufacturers and homebuilders, expressed concern over the expansive scope of the 2015 WOTUS Rule. 

The WOTUS Legal Roller Coaster

Almost immediately after it was issued, the 2015 WOTUS Rule became mired in litigation in several federal district courts and circuit courts around the country.  Just before the Rule was to become effective, a federal court in North Dakota issued a preliminary injunction enjoining enforcement of the Rule in 13 states.  In 2016, the U.S. Court of Appeals for the Sixth Circuit ruled that it had original jurisdiction over challenges to the 2015 WOTUS Rule and issued a nationwide stay of the Rule.  On February 28, 2017, President Trump issued an Executive Order directing the EPA and the Corps to review the 2015 WOTUS Rule and to publish a proposed rule rescinding or revising the Rule. 

In January 2018, the U.S. Supreme Court ruled that the federal circuit courts did not have original jurisdiction to review the 2015 WOTUS Rule and that challenges to the Rule must be brought in the federal district courts.  The Sixth Circuit then vacated its nationwide stay and cases in the district courts came to life again.  In response to the Supreme Court decision, on February 6, 2018, the EPA and the Corps promulgated a rule suspending the effective date of the 2015 WOTUS Rule for a period of two years (the “Suspension Rule”) to give the EPA and the Corps time to revise their definition of waters of the United States.  Several environmental groups filed a lawsuit in federal court in South Carolina challenging the manner in which the Suspension Rule was enacted. Attorneys general for ten states, including Maryland, filed a similar lawsuit in federal court in New York challenging the Suspension Rule. 

On August 16, 2018, the federal court in South Carolina agreed with the environmental group plaintiffs that the government did not follow appropriate notice and comment procedures in enacting the Suspension Rule.  The court enjoined the Suspension Rule nationwide, which means that the 2015 WOTUS Rule will be reinstated in 26 states.  The Rule remains stayed in the other 24 states where two federal courts have issued preliminary injunctions against the Rule. 

To Be Continued…

The South Carolina ruling leaves industry members subject to inconsistent regulations, depending on the states in which they operate.  In Maryland, the 2015 WOTUS Rule is in effect for now.  But the roller coaster ride for the 2015 WOTUS Rule is not yet over.  The South Carolina decision has been appealed to the U.S. Court of Appeals for the Fourth Circuit.  In addition, a federal district court in Texas is currently considering a request by a coalition of farmers, foresters, and builders for another nationwide injunction to prevent the implementation of the 2015 WOTUS Rule.  In the meantime, the EPA and the Corps are trying to finalize a repeal of the 2015 WOTUS Rule and develop a new definition of waters of the United States.  Stay tuned and hold onto your seats!

If you have a project involving a recent or anticipated wetlands delineation or for additional information, contact Maggie Witherup at (410) 576-4145.






Witherup, Margaret M.

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