Just when farmers thought they had some time for the Trump Administration to save the day and fix the Obama-written Waters of the U.S. rule, a South Carolina judge comes in and said the government didn’t follow the proper administrative rules. So now 26 states again must abide by the Obama-era WOTUS rule which has caused so much uncertainty in how the government will regulate waterways, ponds and ditches on farms across the landscape.
A South Carolina federal judge ruled Aug. 15 that the Environmental Protection Agency and the Army Corps of Engineers improperly suspended the 2015 WOTUS rule written by the Obama Administration. The latest overturn arises out of the promulgation of a rule that suspends the 2015 Clean Water Rule for two years by the Trump Administration. The Clean Water Act prohibits discharge of pollutants from a point source into “navigable waters” without a permit.
Previously the EPA’s WOTUS Applicability Date Rule, or suspension rule, prevented the 2015 WOTUS rule from going to effect until February 6, 2020. The suspension rule was put in place to allow time for the new administration to repeal and re-propose a more workable definition. On the same day that the Suspension Rule went into effect, environmental plaintiffs filed suit against the manner in which the Suspension Rule was enacted saying it violated the Administrative Procedure Act because there was insufficient public notice and comment period.
In U.S. District Judge David Norton's ruling he wrote, “The agencies refused to engage in a substantive reevaluation of the definition of the ‘waters of the United States’ even though the legal effect of the Suspension Rule is that the definition of ‘waters of the United States’ ceases to be the definition under the WOTUS rule and reverts to the definition under the 1980s regulation. The definition of ‘waters of the United States’ is drastically different under these two regulations.”
The ruling concluded, “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 country is split in its coverage now. The remaining 24 states are protected by other federal court injunctions against the 2015 Rule - one in North Dakota that covers 13 states, and one in Georgia that covers 11 states.
National Cattlemen’s Beef Association Chief Environmental Counsel Scott Yager said the ruling creates a “zombie WOTUS.” In a statement Yager said the ruling underscores the urgent need to finalize the repeal of the 2015 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,” he said.
Confusion and uncertainty are just two reasons why many in agricultural circles are hoping the Trump Administration will hurry up with its rule rewrite.
American Farm Bureau Federation President Zippy Duvall said, “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.”
The American Farm Bureau Federation and a broad coalition of business organizations have notified the federal district court in South Carolina they will appeal that 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 what they view is an "illegal" 2015 WOTUS rule.