The Trump Administration’s’ efforts to overturn the Obama Administration’s 2015 Waters of the United States (WOTUS) rule took another confusing turn on August 16 with a dramatic decision by a Federal judge in South Carolina. U.S. District Judge David Norton’s ruling enjoins the Trump Administration’s suspension of the Obama WOTUS rule for 2 years pending issuance of a new and less expansive rule.
This latest twist in the chaotic WOTUS saga promises to create even more confusion for energy, construction, mining and other industries that require Clean Water Act Section 404 approvals from the U.S. Army Corps of Engineers.
Judge Norton’s decision
In enjoining the Suspension Rule, District Judge David Norton strongly criticized what he claimed was a failure by the EPA and Corps of Engineers to follow the Administrative Procedure Act. Judge Norton held that:
“By refusing to allow public comment and consider the merits of the WOTUS rule and 1980s regulation, the agencies did not allow ‘meaningful opportunity’ to comment. As such the court finds that the agencies were arbitrary and capricious in promulgating the Suspension Rule.”
“To allow the type of administrative evasiveness that the agencies demonstrated in implementing the Suspension Rule would allow government to become a matter of whim and caprice of the bureaucracy.”
“The agencies failed to promulgate the Suspension Rule with [the] required fidelity [to law and legal process] here.”
In granting a nationwide injunction against the Suspension Rule, Judge Norton wrote that the rule “affects a vast array of wetlands across the United States and environmental plaintiffs have provided affidavits that articulate concerns of their members… not just in South Carolina or even within the Fourth Circuit but throughout the United States.”
While Judge Norton set aside the Suspension Rule nationally, he did not vacate injunctions by North Dakota and Georgia federal courts that enjoined 2015 Rule in 24 states. What follows are the 26 states affected by the Judge’s ruling:
Thus, the 2015 rule remains effective in 26 states and the District of Columbia, creating confusion and uncertainty as to which “waters” come under federal regulation.
The WOTUS quagmire
Judge Norton’s decision is the latest chapter in the long running WOTUS” saga.” As we blogged recently (see here), the Trump Administration’s effort to repeal and replace the Obama Administration’s 2015 WOTUS rule has a created a litigation nightmare. Detractors of that rule, including many in Congress and dozens of state Attorneys General, have criticized it as a federal “land grab” subjecting huge areas, including isolated and ephemeral streams, to the Section 404 process based on Justice Kennedy’s “Significant Nexus” opinion in the 2006 Rapanos decision. Environmental groups and a number of other state attorneys general have backed the rule as needed to protect water quality.
President Trump’s February 2017 Executive Order 13778 directed the Army Corps of Engineers and EPA to propose a rule “rescinding or replacing” the 2015 rule and to consider interpreting the term “Navigable Waters” in the Clean Water Act consistent with Justice Scalia’s Rapanos decision limiting the term to only flowing streams and rivers and their adjacent wetlands.
Since the Executive Order, these efforts have faced a legal maze leaving many heads spinning in an effort to understand what “waters” will need Section 404 permits. This January, the Supreme Court ruled that review of the rule should be left to federal district courts and not courts of appeals, effectively dissolving a 2016 nationwide stay of the rule. (For our analysis of SCOTUS action, click here.)
That ruling reactivated pending lawsuits over the 2015 rule and meant that the 2015 rule would only be enjoined in 13 states covered by a 2015 injunction issued by the North Dakota federal court and 11 states covered by a June 8 injunction by a federal court in Georgia.
In an effort to provide clarity, EPA and the Corps issued a rule this February “suspending [the] applicability” of the 2015 rule until 2020 and reinstating their 2008 post-Rapanos guidance, which was based on a 1986 definition of “waters.” Predictably, states and environmental groups favoring the Obama rule challenged the suspension rule in federal district courts in New York and South Carolina leading to Judge Norton’s August 16 decision. To further complicate matters, the agencies have proposed to repeal the 2015 rule and have submitted a replacement rule to OMB for review. This rule is not expected for public comment for several months.
What Should Permit Applicants do?
Given the current confusion, expect the EPA and Corps of Engineers to issue guidance soon while they decide whether to appeal. While the agencies will likely try to minimize regulatory confusion, pressure is likely to increase on applicants to work more closely with Corps regulators on practical approaches to jurisdictional determinations.
Environmental groups are now likely to bring citizen suits to enforce the 2015 rule in the 26 states where it is in effect. Crucially, applicants should be careful not to assume lack of CWA jurisdiction to avoid becoming a target of such suits!
Finally, permit applicants should closely follow the fast-changing legal and regulatory developments. If rules change due to future agency or court action, applicants likely need to move quickly to adjust their submissions. To that end, anticipating possible future Corps changes and preparing for eventualities become even more important to timely approvals.
Larry Liebesman Senior Advisor at Dawson & Associates
A nationally recognized environmental lawyer with more than 40 years of experience, including 11 years at the U.S. Justice Department, Larry specializes in federal Clean Water and Endangered Species Acts and the National Environmental Policy Act (NEPA).
The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.