The Waters of the U.S. (WOTUS) rule released in 2015 under the Obama administration is 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 August 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 U.S. Environmental Protection Agency (EPA) rule to delay WOTUS implementation, released on January 31, 2018.
Judge Norton’s injunction means the 2015 WOTUS rule now applies in the following 26 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.
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 currently litigation pending in a federal district court in Texas that could possibly result in a nationwide injunction of WOTUS, meaning the rule could be once again halted in every state.
WOTUS is a term used in the Clean Water Act to determine what waters and their conveyances fall under federal and state permitting authority. In 2014, the EPA and the Corps undertook an effort to rewrite and expand the current WOTUS definition. In 2015, the Obama administration finalized a new definition of WOTUS, which was immediately challenged in the courts.
In February 2017, President Trump released Executive Order (EO) 13778: Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the U.S.” Rule, which instructed the EPA and the Corps to review and rewrite the 2015 WOTUS rule.
On May 9, 2018 the Trump Administration released its biannual Unified Agenda of Federal Regulatory and Deregulatory Actions, which included next steps for WOTUS. According to the Unified Agenda, a new WOTUS definition is to be announced this year and finalized in September 2019.
As owners, users and regulators of water resources and infrastructure, counties are directly impacted by the definition of WOTUS. Since its release in 2015, NACo has expressed concerns with the Obama-era WOTUS 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 and more in-depth consultation with state and local officials could be completed.