Judge revives WOTUS rule in 26 states

Key Takeaways

The Waters of the U.S. (WOTUS) rule released in 2015 under the Obama administration is now officially in effect in 26 states after a federal judge in South Carolina issued an injunction on the Trump Administration’s efforts to delay the controversial 2015 rule.

On Aug. 16, U.S. District Judge David Norton of the District of South Carolina ruled in favor of the Southern Environmental Law Center, which claimed the administration violated the Administrative Procedure Act by failing to seek public comment on the Environmental Protection Agency’s rule to delay WOTUS implementation, released Jan. 31. 

Norton’s injunction means the 2015 WOTUS rule now applies in the following 26 states: 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.

For the remaining 24 states, federal district courts in North Dakota and Georgia have issued injunctions preventing the 2015 WOTUS rule from going into effect. There is litigation pending in a federal district court in Texas that could result in a nationwide injunction of WOTUS, meaning the rule could be once again halted in every state.

Since its release in 2015, NACo has expressed concerns with the Obama-era rule due to its broader interpretation of WOTUS and the potential impact it could have on county-owned and maintained roads and roadside ditches, bridges, flood control channels, drainage conveyances and wastewater and stormwater systems. NACo had called for the 2015 final WOTUS rule to be withdrawn until further analysis.