Judge rules against Trump attempt to delay Obama WOTUS rule

A federal district court judge in Charleston, South Carolina, issued a ruling Aug. 16 that overturns the Trump administration’s delay of the implementation of the Clean Water Rule.

The decision put a nationwide injunction on the administration’s suspension rule, reinstating the Obama-era rule—otherwise known as the Waters of the United States—in 26 states.

The ruling, which applies nationwide, has the effect of putting the 2015 rule in effect in the states not covered by stays issued by two other judges. The 26 states are: 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, Virginia, Vermont and Washington.

That means WOTUS is not in effect in Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, North Carolina, Utah, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Carolina, South Dakota, West Virginia, Wisconsin and Wyoming.

The court ruled the Environmental Protection Agency had not followed the rule-making procedures by failing to give an adequate public notice and comment period as stipulated under the Administrative Procedure Act.

“As administrations change, so do regulatory priorities. But the requirements of the APA remain the same. The court finds that the government failed to comply with these requirements in implementing the Suspension Rule,” the court wrote.

The remaining 24 states were previously granted the ability by a federal judge to get out of the WOTUS regulations.

The Trump administration made its first moves to block WOTUS in January 2017. President Donald Trump officially signed the order directing the EPA to reconsider the 2015 rule one month later.

The rule asserted federal power over small waterways like wetlands and streams for the purposes of controlling pollution under the Clean Water Act. Trump promised on the campaign trail to repeal the regulation.

Reaction con and pro

Farm groups hated the decision while environmental groups hailed it.

American Farm Bureau Federation President Zippy Duvall said in a statement, “Due to a misguided ruling by a single federal district court today, the overbroad, vague and illegal 2015 Waters of the United States Rule is now the law of the land in 26 states.

“To avoid widespread uncertainty and potential enforcement against ordinary farming activities in these already-uncertain times, we call on the administration to take immediate steps to limit the impact of this dangerous court decision. The U.S. District Court for South Carolina was wrong to invalidate the agency’s ‘applicability rule’ that had simply delayed the effective date of the 2015 WOTUS rule.

“The delay rule would have maintained regulatory certainty and stability while the administration completes its reconsideration of the 2015 rule and works to develop a new regulation to provide both clean water and clear rules. Today’s court ruling creates enormous regulatory uncertainty and risk for farmers, ranchers and others in the 26 states that are not already protected from the unlawful 2015 rule by previous court decisions.

“The flawed 2015 rule—which two courts have blocked in 24 states, and which would never stand up to legal scrutiny—is now applicable to the citizens of the remaining 26 states. While work continues to develop a common sense and lawful solution, we urge the administration to immediately take action in the courts to limit the scope of this injunction to South Carolina. We also urge the administration to move as quickly as possible to a final decision to repeal the 2015 rule. Now, more than ever, we must ditch the rule.”

National Cattlemen’s Beef Association Chief Environmental Counsel Scott Yager said the ruling, “underscores the urgent need to finalize the repeal of the 2015 Waters of the United States rule. The South Carolina court has effectively brought WOTUS back from the dead in 26 states, creating a zombie version of the 2015 rule that threatens the rights of farmers and ranchers across the country. NCBA will continue to fight in the courts and in Congress to kill the 2015 WOTUS rule once and for all.”

AFBF and a broad coalition of business organizations said they would appeal the South Carolina U.S. District Court’s ruling. In a separate filing, the same coalition also notified a federal district court in Texas of the ruling by the court in South Carolina, urging the Texas-based court to issue a nationwide injunction against the rule.

Two other federal district courts have already granted injunctions blocking the rule in 24 states, citing immediate and “irreparable injuries” likely to result from the rule’s implementation.

“That is all the more true for the plaintiffs before this (Southern Texas) Court,” the notice stated. “Allowing the WOTUS Rule to come into effect in 26 states will prove enormously disruptive to their operations, and indeed to the entire national economy.”

Farmers, ranchers and others in the other 26 states are now faced with “immediate irreparable harm,” according to the Southern Texas filing. “Important and consequential national regulations like the WOTUS rule should not apply differently depending on the happenstance of location.”

The groups urge the court not to allow a “crazy-quilt regulatory environment” and to grant a nationwide injunction against the 2015 WOTUS rule “as expeditiously as possible.”

Environmental groups, meanwhile, said the court’s decision was a victory.

Athan Manuel, the Sierra Club’s director of lands protection, said in a statement the federal injunction is “a victory for communities across the country seeking access to clean drinking water. The Clean Water Rule is a landmark policy that protects the water of one in three Americans. They should not have to ‘delay’ having access to clean water so polluters can fatten their wallets.”

Larry Dreiling can be reached at 785-628-1117 or [email protected].