In the last year, we’ve reported several times on the implementation and interpretation of the Clean Water Rule. The 2015 Clean Water Rule, or Waters of the United States (WOTUS) rule, attempted to more clearly define which bodies of water fall under United States federal jurisdiction and are covered under the 1972 Clean Water Act (CWA). It expanded protection to some tributaries, streams, and wetlands that lead to the “navigable waters” traditionally protected under the CWA. Critics argue that in effect, the WOTUS rule greatly increases the amount of private and public property potentially subject to federal jurisdiction and regulation, causing potential economic harm to developers, farmers, and other business owners with water on, or flowing through their property. In a continued pattern of deregulation from the current administration, in January of 2018, the EPA announced their intention to suspend the WOTUS rule, leading to litigation in federal courts in many states.
Last month, environmental conservation groups notched a small victory as a federal judge in South Carolina found that in suspending the WOTUS rule, the government breached requirements under the Administrative Procedure Act regarding public comment. In South Carolina Coastal Conservation League et al. v. Pruitt, et al., summary judgment was granted to a group of plaintiffs including the North Carolina Wildlife Federation, the Defenders of Wildlife, and others, barring the federal government’s suspension of the WOTUS rule. The district court judge’s ruling has brought the Clean Water Rule back from the dead, if at least temporarily. Defendants immediately noticed an appeal with the Fourth Circuit, alleging that the court’s decision created a problematic patchwork of states where the WOTUS applies, and others where it does not.
As an immediate result of the South Carolina decision, in a case captioned State of Texas et al, v. U.S. Environmental Protection Agency, et al., the states of Louisiana, Mississippi and Texas filed for injunctive relief in federal court in Texas. The states asked the court to impose a nationwide ban on the implementation of the WOTUS rule, arguing immediate and irreparable harm to various business and agricultural interests. Last week, the court temporarily enjoined the WOTUS rule in those three states only, rationalizing that it did not make sense for states to waste time and resources to enforce a rule that might not survive judicial review.
Following these decisions, the WOTUS rule remains in effect in only 23 states, pending various appeals in circuit courts throughout the country. Given the disparity in the current implementation of the WOTUS rule, and the uncertain status of its suspension, we certainly expect to see more filings and decisions on its fate.