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OnePoint Alert

August 17, 2018

Clean Water Act Update – Court Rejects Delay of the 2015 WOTUS Rule

By Wendy Wilkie Parker

The United States District Court for the District of South Carolina has issued an order that effectively reinstates the regulation that defines "waters of the United States" issued by the Obama Administration under the Clean Water Act in 2015 (the “2015 WOTUS Rule”) in twenty-six (26) states.  The Order issued by Judge David C. Norton on August 16, 2018 granted summary judgment in favor of environmental groups challenging a final rule issued by the U.S. Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers (the "Corps") to delay the implementation of 2015 WOTUS Rule until 2020 (identified in the Order as the “Suspension Rule”).  The Order includes a nationwide injunction of the Suspension Rule.  The effect of the Order is to make the 2015 WOTUS Rule applicable for those states in which another district court has not already issued an injunction of the 2015 WOTUS Rule. 

On February 6, 2018, the EPA and the Corps published a final rule titled “Definition of ‘Waters of the United States’—Addition of an Applicability Date to 2015 Clean Water Rule,” through which the agencies delayed implementation of the 2015 WOTUS Rule until 2020.  Nine environmental groups challenged the rule in the United States District Court for the District of South Carolina.  In yesterday’s decision, the District Court called this final rule the “Suspension Rule,” since it suspended the implementation of the 2015 WOTUS Rule until 2020.  The Court determined that the Suspension Rule violated the Administrative Procedures Act (“APA”), because the proposed rule to extend the implementation of the 2015 WOTUS Rule to 2020 sought comments only on the date of implementation and did not solicit or allow for comment on the substantive content of the 2015 WOTUS Rule or the prior regulation.  The Court addressed only the procedural violation of the APA and not the substantive arguments for and against the 2015 WOTUS Rule.  

The 2015 WOTUS Rule is significantly broader than the prior version of the regulation and has been challenged in several courts.  Litigation regarding the 2015 WOTUS Rule has resulted in preliminary injunctions for the rule in twenty-four (24) states with other states seeking similar preliminary injunctions.  The United States District Court for the District of North Dakota issued a preliminary injunction of the 2015 WOTUS Rule for Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, North Dakota, South Dakota, Wyoming, and New Mexico. The United States District Court for the Southern District of Georgia issued a preliminary injunction of the 2015 WOTUS Rule for Georgia, Alabama, Florida, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah, West Virginia, and Wisconsin.

The Suspension Rule is one of a series of steps intended to repeal and replace the 2015 WOTUS Rule. On February 28, 2017, President Donald Trump signed an executive order directing EPA and the Corps to propose a new rule that rescinds or revises the 2015 WOTUS Rule.  On March 1, 2017, EPA and the Corps issued a notice of intent to review and rescind or revise the WOTUS rule.  On July 27, 2017, the EPA and the Corps published a proposal to repeal the WOTUS rule.  On July 12, 2018, the EPA and the Corps published a Supplemental Notice of Proposed Rulemaking to repeal the regulation to provide additional support for the proposal to repeal issued in July of 2017.

The August 16, 2018 Order of the United States District Court for the District of South Carolina is available here

The Suspension Rule and related documents are available on the EPA website at the following link:  https://www.epa.gov/cleanwaterrule.