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Latest in Long WOTUS Legal Battle

This post was originally published on this site

The long legal battle over the Clean Water Rule also known as the Waters of the US (WOTUS) continues as a ruling by a judge in the District Court in South Carolina reinstates the 2015 rule published during the Obama administration.  The rule defines which waters are subject to provisions of the Clean Water Act (CWA).  The 2015 rule was an attempt during the previous administration to clarify the definition in response to multiple Supreme Court decisions that contributed to uncertainty about when and where activities might be subject to permitting and other CWA requirements.  The WOTUS suspension, finalized in February of this year, reinstated the definitions of covered waters originally enacted in the 1980s. The two-year suspension was intended to give the administration time to craft a replacement for WOTUS based on a narrow definition of which water bodies are “jurisdictional” (covered by the CWA).  Supporters of the rollback claimed the 2015 WOTUS included water bodies that were never intended to be covered by the CWA, while supporters claimed that the new rule was only providing clarity and not expanding the coverage of the Act.

In the latest ruling, the court found that EPA and the US Army Corps of Engineers, the joint developers of WOTUS, did not follow the Administrative Procedure Act (APA) when they suspended the 2015 rule.  Among other things, to comply with APA, more public input should have been taken before the rule was suspended.  The injunction by the Court reinstated the 2015 WOTUS.  There have been multiple court filings related to WOTUS, with farming and builders groups, plus some Republican states favoring repeal of the 2015 rule, while environmental groups and Democratic states support the new WOTUS.  The South Carolina ruling was a “national” injunction against the suspension of the 2015 rule, but because of cases filed in other courts, it actually only applies to 26 states.  So, there is still no consistency about when the CWA applies to water bodies in the country and that is likely to continue until at least one of these WOTUS cases reaches the Supreme Court.  There, a vacancy that could impact this case is still pending, but that’s another story!