WOTUS is restored—in half the country

In a surprise move, a federal court invalidates Trump’s effort to roll back the rule, which expanded the reach of the Clean Water Act

A federal court in South Carolina on Thursday restored President Obama’s Waters of the United States (WOTUS), a 2015 rule that expanded the powers of the existing Clean Water Act to put more wetlands and waterways under federal regulation.

By overturning the Trump administration’s attempt to delay its implementation, the federal court’s decision now puts the Obama-era interpretation of the rule back into effect in 26 states—but not in the other 24 with federal court injunctions against it.

The Environmental Protection Agency (EPA) under then-Administrator Scott Pruitt moved to rescind the rule in February, when it formally suspended WOTUS for two years so that it could complete a rewrite. After that, several environmental groups, led by the Southern Environmental Law Center, appealed the stay, arguing that EPA had rushed to dismantle an environmental safeguard.

Photographed above are wetlands at the Billy Frank Jr. Nisqually National Wildlife Refuge near the Puget Sound in Washington. The Obama-era WOTUS rule expanded the Clean Water Act to put more of such waters under federal regulation.

Judge David Norton in the U.S. District Court for the District of South Carolina agreed, ruling that EPA had not solicited public comments on the rule, nor had it asked the public to consider the merits of the two regulations, from 1980 and 1982, that Pruitt’s action would return the rule to, DTN reports.

Those 1980s regulations defined the Waters of the United States as lakes, rivers and streams that passed between states. Obama’s rule expands the definition of federally-regulated waters to include streams, tributaries and wetlands that feed into major rivers and water bodies like the Chesapeake Bay, Mississippi River and Puget Sound. That interpretation of the reach of the Clean Water Act restricts the use of pollutants, such as chemical fertilizers, in about 60 percent of American waterways.

“Water, by its very nature, flows across state lines and through politically disjunct territories,” Claire Brown wrote, when The New Food Economy covered Trump’s attempted rollback last year. “It doesn’t care whether you’re worried about the government telling you how to farm or the capacity of your city’s filtration system.”

The expansion has been seen by many, including Pruitt, farm groups such as the American Farm Bureau, and National Cattlemen’s Beef Association, and even the National Golf Course Owners Association, as a burden and regulatory overreach on farmers, ranchers, and real estate developers with streams and tributaries on their properties. (Gina McCarthy, EPA Administrator in 2015, had testified that many farming activities, from plowing and tilling to building ponds and ditches, would be exempt from the regulations, as part of the hearings on expanding federal authority.)

The country’s largest association of farmers is leading a coalition of businesses that plans to challenge the ruling.
“The 2015 rule defines terms such as ‘tributary’ and ‘adjacent’ in ways that make it impossible for farmers and ranchers to know whether the specific ditches, ephemeral drains or low areas on their land will be deemed ‘waters of the U.S.,’” the Farm Bureau writes on a regulatory reform section of its website. The country’s largest association of farmers is leading a coalition of businesses that plans to challenge the ruling.

But the federal judge’s ruling on the injunction has less to do with environmental concerns, or issues of land rights, than it does with legal logic: Judge Norton ruled that district courts, not appeals courts, are where WOTUS should be challenged. That ruling restores the Obama-era regulation in over half the country, including major agricultural states of California, Texas, Iowa, Illinois, and Ohio, but not in 24 other states where two district court decisions have wiped out the rule, according to DTN.

Meanwhile, Politico reports that environmentalists applauded the decision, with the Natural Resources Defense Council (NRDC) calling it a “sharp rebuke to the Trump administration.” As we’ve reported, environmentalists have rallied behind the expansion, saying it would protect streams that one in three Americans rely on for drinking water. But other federal legislation, in fact, ensures the potability of drinking water.

The endgame here is to engineer a final rule that will definitively repeal WOTUS, with EPA and Army Corps of Engineers expected to propose a potentially industry-friendly replacement later this year. A proposed new definition is currently under review by the Office of Management and Budget.

Sam Bloch is a contributing writer for The Counter, where he covers business, environment and culture. He has also written for The New York Times, L.A. Weekly, Places Journal, Art in America and other publications, and is currently working on his first book, a work of narrative nonfiction about shade, for Random House.