Just when you thought it was safe to go back in the water…
A US district court in South Carolina has invalidated EPA’s effort to delay by two years
the effective date of a 2015 Waters of the United States (WOTUS) Final Rule. The Charleston, SC court ruled that EPA and the Army Corps of Engineers failed to follow the provisions of the Administrative Procedure Act when it delayed the rule.
The two-year delay—the first step in a two-step process to replace the 2015 rule—would have given EPA until 2020 to write its own WOTUS rulemaking. Step two, the proposal of a new rulemaking, is still ongoing. EPA sought to delay the effective date of the 2015 rule in part to reduce uncertainty across regulated industries.
Where Is the 2015 WOTUS Rule in Effect Now?
With the two-year delay now nixed and the original effective date already passed, the 2015 WOTUS rule is in effect now in twenty-six states
. In the other twenty-four states, the 2015 Rule remains stayed by district court decisions like this one in North Dakota in Summer 2015. Here’s the upshot of the latest district court decision:
2015 WOTUS Rule in Effect:
California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia, and Washington. 2015 WOTUS Rule NOT in Effect:
Alaska, Alabama, Arizona, Arkansas, Colorado, Georgia, Idaho, Indiana, Kansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, South Carolina, South Dakota, Utah, West Virginia, Wisconsin, and Wyoming.
Further Reading: WOTUS Timeline
Keeping the saga of EPA’s WOTUS rule—which now includes input from EPA, district courts, Circuit Courts, the Supreme Court, and interest groups on both sides of the argument—is increasingly difficult. Below we’ve constructed an approximate timeline of major WOTUS-related events, with links for more information.
What Is the 2015 WOTUS Rule?
The 2015 rulemaking expanded the applicability of the Clean Water Act to many bodies of water that were—before 2015—not
considered “Waters of the US,” and were therefore not
subject to EPA water programs like oil spill notifications, SPCC plans, NPDES permitting and stormwater discharges, dredge and fill permitting, and others.
In short, by broadening its interpretation of the phrase “navigable waters,” EPA was able to make the case in 2015 that more bodies of water should be protected by the Clean Water Act. EPA argued that many smaller or seasonal streams, wetlands, and tributaries flow into larger, “regulated” bodies of water.
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