Volume 18 Issue 35
On August 16, 2018, the US District Court of South Carolina, Charleston Division issued an injunction to remove the 2-year delay of implementation of the Clean Water Rule. This arises out of a case brought before the Court by a number of environmental groups represented by the Southern Environmental Law Center against the US Army Corps of Engineers (USACE), The US Environmental Protection Agency (EPA) and the American Farm Federation as well as a number of agricultural groups.
The result of this case was to make Clean Water Rule effective immediately and nationally. However, 26 other states have other Clean Water Rule stays that would remain in effect. The states that are affected by this decision include; 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.
States included in this decision are now subject the 2015 Waters of the US (WOTUS) definition. For all intensive purposes, a 2015 WOTUS includes all waters with the exception of puddles. However, while puddles are mentioned in the regulation they are not defined so, perhaps some could be jurisdictional.
The decision handed down to the agencies by U.S. District Court Judge David C. Norton appears to be largely a political one. In a highly unusual statement by the Judge, it would seem that the Trump administration is being punished for Obama era injunctions. Judge Norton cites in his decision the case of the City of Chicago v. Sessions:
“[U]nder the Obama administration, such injunctions stymied many of the President’s policies, with five nationwide injunctions issued by Texas district courts in just over a year[.] At that time, then-Senator and now-Attorney General Sessions characterized the upholding of one such nationwide preliminary injunction as “a victory for the American people and for the rule of law.” Press Release, Sen. Jeff Sessions III, June 23, 2016. Now, many who advocated for broad injunctions in those Obama era cases are opposing them.”
He further adds a rather fascinating statement of his own:
“This court agrees that nationwide injunctions should be utilized “only in rare circumstances.” Id. This is one such set of rare circumstances. Just because the political shoe is on the other foot does not mean that nationwide injunctions are no longer appropriate. What is good for the goose is good for the gander.”
His decision is based upon a perceived violation of the Administrative Procedures Act. This Act governs how the US government issues among other things regulations. The 2-year delay in the implementation of the Clean Water Rule was issued as a regulation with a 10-day public comment period. Apparently, this was not enough for the Judge. The rule was simply to delay the implementation of the new WOTUS definition.
It should be noted that the Clean Water Rule only defines what is a WOTUS. Not one word of the Rule has anything to do with cleaning up water. A number of environmental groups have rallied around the Clean Water Rule as some sort of water and wetland protection rule. It is not. It simply defines what waters are subject to federal regulation. The assumption is that if it is regulated by the federal government it must be cleaner. It is a bit ironic to make this assumption as the federal government has been responsible for more wetland loss than any other single entity. Just a few decades ago it was the policy of the federal government to drain and fill wetlands. Why then do you suppose that giving the federal government unilateral control over wetlands and waters would guarantee their protection? History would seem to dispute this.
In the meantime, it is safe to expect a delay on the issuance of any permits or Jurisdictional Determinations in the affected states. The Corps will need to issue some guidance on how it will comply with the Court’s findings as there is no current 2015 WOTUS guidance in place. As soon as it breaks we will post it on our FaceBook page and publish a follow-up newsletter.
References: August 16, 2018, Order No. 2-18-cv-330-DCN