This West Is OUR West

Court reinstates suspended WOTUS rule

A U.S. district court ruling has resurrected a contentious 2015 rule that would give the federal government broad regulatory control over virtually any waters and associated land.

Carol Ryan Dumas

August 17, 2018

A U.S. District Court in South Carolina has reinstated the controversial 2015 Waters of the United States rule that expanded EPA and Army Corps of Engineers jurisdiction under the Clean Water Act.

U.S. District Judge David Norton on Thursday ruled the Trump administration failed to comply with rulemaking requirements under the Administrative Procedure Act in suspending rule.

Norton ruled that while different administrations may implement different regulatory priorities, they must comply with procedural requirements. Specifically, the government provided no “reasoned analysis” for suspending the rule and no “meaningful opportunity” for public comment, Norton stated.

The judge enjoined the suspension rule nationwide. But two federal courts — one in North Dakota covering 13 states and one in Georgia covering 11 states — have blocked implementation in 24 states.

The rule now applies in 26 states, including Washington, Oregon and California.

The court’s decision is the result of a motion for summary judgment brought by 10 conservation groups represented by the Southern Environmental Law Center.

“We are thrilled the court rejected this administration’s blatant attempts to undermine safeguards that are critical to our nation’s welfare without being accountable to the American people,” Geoff Gisler, senior attorney with the law center, said in a statement.

Agricultural groups, however, see things differently.

The American Farm Bureau Federation calls the ruling “misguided” and maintains the WOTUS rule is overbroad, vague and illegal.

“Today’s court ruling creates enormous regulatory uncertainty and risk for farmers, ranchers and others in the 26 states that are not already protected from the unlawful 2015 rule by previous court decisions,” Zippy Duvall, AFBF president, said in a statement on Thursday.

The court was wrong to invalidate the rule that had simply delayed the effective date of the WOTUS rule while the administration works to develop a new regulation to provide both clean water and clear rules, he said

While that work continues, AFBF is urging the administration to take action in court to limit the scope of the district court’s decision to South Carolina.

National Cattlemen’s Beef Association said the court’s ruling underscores the urgent need to finalize the repeal of the 2015 WOTUS rule.

“The South Carolina court has effectively brought WOTUS back from the dead in 26 states, creating a zombie version of the 2015 rule that threatens the rights of farmers and ranchers across the country,” Scott Yager, NCBA chief environmental counsel, said in a statement to the press.

Oregon Farm Bureau also issued a statement, saying EPA could now force farmers and ranchers to apply for a costly permit to do even the most basic work, such as plowing, planting and applying pesticides and fertilizers on dry fields.

They could also be hit with enormous fines and frivolous lawsuits, Mary Anne Cooper, OFB public policy counsel, said.

“The 2015 WOTUS rule goes far beyond congressional intent and the lawful bounds of the Clean Water Act as articulated by previous Supreme Court decisions,” she said.

OFB is urging the Trump administration to permanently repeal the rule as quickly as possible.