Legal Morass Muddies the Waters on the WOTUS Rule

Filed in Codes and Regulations, Environmental, Legal by on August 20, 2018 1 Comment

A recent ruling by the U.S. District Court for South Carolina means that for the foreseeable future, roughly half of U.S. states will be abiding by one set of rules pertaining to waters of the United States while the rest will abide by different rules.

A brief background:

Between 1986 and 2015, the Environmental Protection Agency and U.S. Army Corps of Engineers operated under the 1986 definition of the Clean Water Act term “waters of the United States.”

In August 2015, the EPA promulgated a new definition of waters of the United States that was known as the WOTUS rule. Litigation ensued in multiple courts around the country.  Soon thereafter, the Court of Appeals for the Sixth Circuit enjoined the WOTUS rule nationwide, which prevented its implementation. Thus, the 1986 definition was still in effect.

The Sixth’s Circuit’s decision was overturned by the Supreme Court in 2018. However, before the Supreme Court’s decision took effect, the EPA finalized a rule that added an “applicability date” to the 2015 WOTUS rule. This rule postponed the applicability of the WOTUS rule until 2020. Therefore, nationwide, the EPA and Corps of Engineers still applied the 1986 definition of waters of the United States.

On Aug. 16, 2018, the District Court for South Carolina ruled that the EPA had improperly added the applicability date to the 2015 WOTUS Rule. The judge explained that the EPA had restricted the topics that the public could comment on when it proposed to add the applicability date. According to the court, this restriction denied the public a meaningful opportunity to comment on the applicability date rule. Thus, it nullified the applicability date rule nationwide.

This decision leaves the regulated community in a state of disarray. Other courts have previously enjoined, or prohibited, application of the 2015 WOTUS rule.

So where do things stand now?

In 24 states (see below), the 1986 definition of waters of the United States is applicable. In the remaining 26 states, the 2015 WOTUS rule defines the term “waters of the United States.”

us map of states abiding by 2015 WOTUS ruleIt is not clear whether the administration plans to appeal the South Carolina court’s ruling, or whether it will seek a stay of the court’s ruling pending appeal. However, NAHB’s coalition had already asked a court in Texas to enjoin the 2015 WOTUS rule nationwide and recently reiterated that request.

Meanwhile, EPA is trying to finalize another 2017 proposed rulemaking that would finally repeal the 2015 WOTUS rule and temporarily replace it with the original (1986) regulatory definition of WOTUS.

According to EPA’s current regulatory agenda, the rule repealing the 2015 WOTUS rule is expected to be finalized by November of this year. Moreover, the Trump administration’s proposed version of a new regulatory definition of WOTUS consistent with the president’s guidelines contained within his executive order on this issue is expected by October.

Given the legal confusion created by the U.S. District Court for South Carolina ruling coupled with various WOTUS-related rulemakings expected from EPA and the Corps of Engineers over the coming months, NAHB will provide regular updates as the situation develops.

For more information, contact Michael Mittelholzer at 800-368-5242 x8660.

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  1. Betty Moorhead says:

    Once again – Democrats vs Republicans – never mind what’s good for the nation. Have you ever watched preschoolers squabbling?

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