On August 16, 2018, the U.S. District Court for the District of South Carolina, Charleston Division, issued a nationwide injunction to the Trump administration’s so-called “Suspension Rule,” which called for the delayed effective date of the Obama-era “waters of the United States rule” (or “WOTUS Rule”). Thus, the struggle to delineate the federal government’s jurisdiction under the Clean Water Act to require permits for pollutant discharges continues, and for the time being, different rules are in effect depending on the state.

The WOTUS Rule, enacted on August 28, 2015, sought to clarify the definition of “waters of the United States,” subject to regulation under the Clean Water Act. Its aim was to add technical specificity to Justice Kennedy’s “significant nexus” test set forth in Rapanos v. United States, 547 U.S. 716 (2006).  In particular, the Rule’s definition of the terms “tributary” and “adjacent” has given rise to concerns from industry and agricultural groups that EPA and the Army Corps of Engineers (the “agencies”) would have the ability to require permits for discharges to manmade drainage ditches, ephemeral ponds, or isolated wetlands.

The Suspension Rule sought to delay the effective date of the WOTUS Rule to 2020, reverting to the agencies’ pre-2015 interpretation of “waters of the United States,” deemed the “1980s regulations” by the Court. According to the agencies, the aim of the Suspension Rule was to allow the agencies to review and revise the WOTUS Rule before it could take effect.

United States District Judge David C. Norton found that the agencies violated the Administrative Procedure Act (“APA”) by failing to provide adequate public notice and comment. First, the Court held that the Suspension Rule’s abbreviated comment period of 21 days failed to allow “meaningful” commentary.  The Court raised the sharp contrast between the public comment process for the WOTUS Rule—which involved a four-year rule-making process, a review of thousands of peer-reviewed scientific studies, and over one million public comments in a notice-and comment period lasting over 200 days—and that of the Suspension Rule, which received over 680,000 public comments over the course of the public comment period that lasted just a “few weeks,” and which was “promulgated in mere months in a process that involved instructing the public to withhold substantive comments and did not consider any scientific studies.” (Slip Op. at 12-13.)

The Court additionally faulted the agencies for refusing to seek comment on the merits of the WOTUS Rule, the 1980s regulations, or what definition of “waters of the United States” the agencies should ultimately adopt.  (Slip Op. at 9, internal citations omitted.) The Court rejected the agencies’ position that, since a new substantive rule to replace the WOTUS Rule was not yet on the table, it was appropriate to limit comments to whether the two-year delay of the WOTUS Rule was appropriate. By contrast, the Court held that the Suspension Rule would have substantive impacts because “the definition of ‘waters of the United States’ is drastically different” under the WOTUS Rule and the 1980s regulations. (Slip Op. at 10-11.)

In a rebuke of the agencies’ actions, the Court cautioned, “To allow the type of administrative evasiveness that the agencies demonstrated in implementing the Suspension Rule would allow government to become ‘a matter of the whim and caprice of the bureaucracy.’ Certainly, different administrations may implement different regulatory priorities, but the APA ‘requires that the pivot from one administration’s priorities to those of the next be accomplished with at least some fidelity to law and legal process.’ The agencies failed to promulgate the Suspension Rule with that required fidelity here. The court cannot countenance such a state of affairs.” (Id. at 14.)

The Court further held that its injunction would be nationwide. Accordingly, the WOTUS Rule is now the controlling law in 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. Decisions in the district courts in Georgia and North Dakota have enjoined the WOTUS rule in the remaining 24 states.

Overviews of the substance of the WOTUS Rule, and of the legal controversies preceding and following it, are available here, here, and here.

For more information about Clean Water Act jurisdiction and the status of the WOTUS Rule, please contact Victoria Treanor.