Last Thursday, in South Carolina Coastal Conservation League v. Pruitt, South Carolina Federal District Court Judge Norton issued an order which made the Waters of the United States (WOTUS) Rule take effect in twenty-six states. As background, the CWA prohibits discharges to WOTUS without a permit, but does not define the term. In 2015, the Obama Administration finalized the WOTUS Rule, which applied an expansive meaning to the term to broaden federal jurisdiction. In October 2015, the Sixth Circuit delayed the effective date of the WOTUS Rule pending judicial review. In January 2018, the Supreme Court concluded its review and ordered that the Sixth Circuit, among other actions, lift its stay of the Rule. In order to delay the implementation of the WOTUS Rule, the Trump Administration responded with yet another rulemaking – referred to as the “Suspension Rule” – which delayed the effective date of the WOTUS Rule by two years while the Administration considered a replacement for the Obama-era WOTUS Rule.
Yesterday’s decision by Judge Norton overturned the Suspension Rule, thereby making the WOTUS Rule effective. In overturning the decision, the court concluded that the Trump Administration violated the Administrative Procedure Act (APA) by limiting its consideration to comments on only delay, rather than the merits, of the WOTUS Rule. Further, the court determined that the Trump Administration improperly abbreviated the length of the public comment period for the Suspension Rule. As environmental Petitioners in the case requested, Judge Norton held that his ruling was effective nationwide.
However, as a precaution against the Suspension Rule being overturned, federal district courts in Georgia and North Dakota have issued orders in the past months prohibiting the implementation of the WOTUS Rule in a total of twenty-four states while the courts consider the legality of the WOTUS Rule in full trials. Therefore, the WOTUS Rule only becomes effective in twenty-six states falling outside these decisions. Appeals of Judge Norton’s decision are likely, and EPA may expedite its schedule for finalizing its repeal rule (for which a public comment ended August 13, 2018) in order to limit the impact of the court’s decision. If you have any questions regarding the recent decisions or its implications, please contact Patrick Fanning, Morgan Gerard, or Rich Pepper.