District Court Revives 2015 WOTUS Rule in 26 States
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.
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.
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.
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.
Are you the go-to person for all things EHS at your facility? Join us in Nashville on October 24—25 for the nationally trusted Complete Environmental Regulations Workshop.
Understanding the air, water, and chemical regulations that apply to your facility will help you communicate clearly and confidently with your organization and better defend your business against costly fines, penalties, and future liability. This workshop covers the critical elements of major EPA programs that impact industrial facilities every day.
Can’t attend live? Check out the Complete Environmental Regulations Online Course . The online course is packed with training content, tutorials, resources, and FAQs that clarify and simplify the complex, overlapping EPA rules you must know.
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.
- 06/2015: EPA Redefines “Waters of the United States” (EPA Final Rule)
- 08/2015: EPA’s Waters of the US Rule Blocked in 13 States (District Court Ruling)
- 10/2015: WOTUS Rule Blocked Nationwide (Circuit Court Ruling)
- 03/2017: POTUS Orders Review of WOTUS Rule (Executive Order)
- 03/2017: EPA and Army Announce Review of 2015 WOTUS Rule (EPA announcement)
- 06/2017: EPA Proposes Waters of the US Recodification (EPA proposed rule)
- 08/2017: EPA Extends Comment Period on WOTUS Rule Recodification (EPA proposed rule)
- 11/2017: EPA and Army Push Back WOTUS Applicability by 2 Years (EPA proposed rule)
- 01/2018: Supremes Relegate WOTUS Argument to District Courts (Supreme Court decision)
- 07/2018: EPA Clarifies Its WOTUS Repeal Rule (Supplemental notice of proposed rulemaking)
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.
Complete EHS Manager Training in Nashville
Are you the go-to person for all things EHS at your facility? Join us in Nashville on October 24—25 for the nationally trusted Complete Environmental Regulations Workshop.Understanding the air, water, and chemical regulations that apply to your facility will help you communicate clearly and confidently with your organization and better defend your business against costly fines, penalties, and future liability. This workshop covers the critical elements of major EPA programs that impact industrial facilities every day.
Can’t attend live? Check out the Complete Environmental Regulations Online Course . The online course is packed with training content, tutorials, resources, and FAQs that clarify and simplify the complex, overlapping EPA rules you must know.
Tags: Act, Clean, EPA Enforcement, new rules, SPCC, Water, WOTUS
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