Regulatory Developments, Special Topics in Environmental Management

WOTUS Definition Reinstated by District Court Judge

Judge David C. Norton of the U.S. District Court for South Carolina upended the Trump administration’s careful plans to eliminate and replace the Obama administration’s Clean Water Rule by issuing an injunction against the EPA and Army Corps of Engineers’ (Corps) “Suspension Rule” that delayed the effective date of the Clean Water Rule for 2 years.

Yosemite Merced River el Capitan Panorama

uschools / E+ / Getty Images

According to Norton, who was appointed by President George H.W. Bush, the Suspension Rule (February 6, 2018, Federal Register (FR)) was issued in violation of the Administrative Procedures Act (APA) because the rule was proposed and made final with no presentation of the substantive issues and, therefore, no opportunity for the public to comment on those issues.

Norton’s order did not address the merits of the Clean Water Rule.

The injunction is nationwide but effectively reinstates the Clean Water Rule in 26 states (see full list below); the remaining states are subject to district court injunctions blocking implementation of the Clean Water Rule. In January 2018, the U.S. Supreme Court ruled that the district courts, not the circuit courts, have original jurisdiction over challenges to the Clean Water Rule. The district courts’ conflicting views on the rule and its definition of “waters of the United States” (WOTUS) may lead to an additional hearing by the high court, which has issued multiple but narrow opinions on how to define WOTUS and where federal jurisdiction under the Clean Water Act begins and ends.

Expanded Federal Jurisdiction

The Clean Water Rule (June 26, 2015, FR) provided a new definition of WOTUS, which considerably expanded federal jurisdiction, particularly with regard to any upstream waters that flow or may flow into navigable waters. However, on February 28, 2017, President Donald Trump issued Executive Order (EO) 13778 ordering the EPA and the Corps to review, revise, and/or rescind the Clean Water Rule and any regulations implementing or enforcing it. In the wake of this order, the EPA and Corps issued the Suspension Rule, which delayed the implementation date of the Clean Water Rule to February 6, 2020, so that the Agencies could undertake a two-part rulemaking process to revise the definition of WOTUS.  The first step will rescind the definition of WOTUS as codified by the Clean Water Rule and recodify the definition that was in place before August 27, 2015. The second step will involve a substantive reevaluation of the definition.

APA Challenge

In the current case, many environmental groups sued the Agencies on three grounds:

  • In promulgating the Suspension Rule, the EPA/Corps violated the APA by taking action with inadequate public notice and comment as prescribed by the APA.
  • The government’s failure to consider the substantive implications of suspending the Clean Water Rule in enacting the Suspension Rule was arbitrary and capricious under the APA, which directs federal agencies to “examine the relevant data and articulate … satisfactory explanation[s] for … [their] action[s].”
  • The government’s failure after enacting the Suspension Rule to restore the 1980s regulation to the FR violates the APA, which requires federal agencies to publish the language of any substantive regulation that they intend to have legal effect.

Norton said he agreed with the first two claims and, therefore, did not rule on the third.

Farmworker Case

Much of Norton’s opinion is based on North Carolina Growers’ Association, Inc. v. United Farm Workers, a 2012 opinion issued by the 4th Circuit, which, according to Norton, concerned rulemaking that was “almost factually indistinguishable” from the WOTUS case. The 4th Circuit found that a rulemaking effort by the secretary of Labor to suspend a 2008 regulation and reinstate a 1987 regulation more favorable to U.S. agricultural interests essentially eliminated all possibility for public comment by providing only a 10-day period to receive comments.  The 4th Circuit noted that the 1987 rule “ceased to have any effect” upon publication of the 2008 rule, so its “reinstatement would have put in place a set of regulations that were new and different ‘formulations’ from the 2008 regulations.” Effectively, reinstatement meant the department was promulgating a new set of regulations without following the notice and comment requirements of the APA.

No Substantive Reconsideration

In proposing the Suspension Rule, the EPA/Corps simply asked the public whether it was appropriate to suspend the Clean Water Rule for 2 years. The agencies added that they were not undertaking substantive reconsideration of the 1980 definition and so were not soliciting comment on it.

“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,” writes Norton. “The definition of waters of the United States is drastically different under these two regulations.”

“‘An agency’s view … may change.… But an agency changing its course must supply a reasoned analysis,’” Norton continues, quoting Motor Vehicle Manufacturers Association of the U.S., Inc. v. State Farm Mut. Automobile Insurance Company (U.S. Supreme Court, 1983). “No such ‘reasoned analysis’ was provided in the promulgation of the Suspension Rule. By refusing to allow public comment and consider the merits of the WOTUS rule and the 1980s regulation, the agencies did not allow a ‘meaningful opportunity’ to comment. As such, the court finds that the agencies were arbitrary and capricious in promulgating the Suspension Rule. It vacates the Suspension Rule for this reason.”

Norton’s ruling reinstates the WOTUS Rule in California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia, and Washington.

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