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2015 WOTUS Rule Partially Back in Effect After District Court Decision

September 10, 2018

In mid-August, a new ruling issued by a U.S. District Judge in South Carolina revived the flawed 2015 Waters of the United States (WOTUS) regulation for some states – though the rule does not apply in other states where court actions have stayed its implementation. This most recent legal turn comes just after NMPF submitted comments to the U.S. Environmental Protection Agency (EPA) that said the 2015 rule must be permanently rescinded and the prior version of the regulation re-codified to provide better clarity for dairy farmers.

On Aug. 16, Judge David Norton for the District of South Carolina ruled that the Trump Administration failed to seek public comment on both the WOTUS Applicability Rule and the implications of delaying the 2015 regulation by two years. The Applicability Rule was put into effect to extend the effective date of the 2015 rule until Feb. 6, 2020, allowing EPA time to repeal and replace it after the Supreme Court determined the U.S. Court of Appeals did not have jurisdiction over the rule.

The South Carolina judge enjoined the Applicability Rule, also referred to as a “Suspension Rule,” nationwide. Norton’s ruling puts the 2015 policy back into effect in the following states: 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. There are still injunctions that stay the 2015 rule in the 24 other states.

The South Carolina court ruling does not impact the repeal process of the 2015 rule, though it could still take time to complete, as the comment period on the repeal closed on Aug. 13. In addition to its own comments, NMPF joined with other farm groups in filing extensive legal and technical comments describing everything that was flawed in the 2015 rule.

In its comments, NMPF said the definitions of the WOTUS rule need to be applied in ways that are consistent with recent Supreme Court decisions and long-standing farming practices. Re-codifying the regulations that existed before the 2015 rule will provide continuity and certainty for dairy farmers, other regulated entities, states governments, agency staff, and the public, the comments said.

The South Carolina decision is being appealed and the Department of Justice (DOJ) has requested that the South Carolina court agree to stay its decision by Sept. 4, 2018. There is also a possibility that the 2015 WOTUS rule will be stayed nationwide by a court in Texas that is also considering legal challenges to WOTUS. Though agricultural groups had asked for a nationwide stay previously, the DOJ opposed it and reversed its opposition.