WOTUS rule will go into effect in 26 states under judge’s ruling

A federal judge on Aug. 16 ruled that a final rule issued by the Environmental Protection Agency and Army Corps of Engineers that adds an “applicability date” of Feb. 6, 2020 to the 2015 Waters of the U.S. (WOTUS) rule must be set aside.

The U.S District Court for the District of South Carolina granted a motion filed by environmental plaintiffs for summary judgement and denied the government’s cross motion for summary judgement.

Absent further action by the government or additional district court stays, the 2015 WOTUS rule will go into effect in 26 states not covered by district court injunctions.

Those 26 states are: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia and Washington.

The judge said the EPA and Army Corps of Engineers had unlawfully declined to consider any comments addressing substantive issues related to WOTUS or an earlier 1982 version when it proposed delaying the rule to give the agencies more time to repeal and replace it. That was a fatal flaw, ruled Judge David Norton of the U.S. District Court for South Carolina. Delaying the WOTUS rule has the effect of reverting to the 1982 rule, he said.

The injunction means the 2015 rule will take effect in the 26 states, while the other 24 are covered by two different injunctions, one issued to 13 states in 2013 and one issued to another 11 states in June.

States covered by the two injunctions as of June 11, 2018 are: Georgia, Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, Utah, West Virginia, Wisconsin, Kentucky, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

The comment period recently closed on the supplemental notice to repeal the 2015 WOTUS rule issued by the EPA and Army Corps of Engineers. It is possible the agencies could move to quickly finalize the repeal.

The final WOTUS rule defines which streams, wetlands and other bodies of water are protected under the Clean Water Act.