Federal Court Reinstates Controversial “Waters of US” Rule in Maryland, 25 Other States

naco logoA National Association of Counties (NACo) County News article (2018-08-19) reported that a United Stated District Court has reinstated the controversial 2015 “Waters of the US” (WOTUS) rule for Maryland and 25 other states. The WOTUS definition under the Clean Water Act determines what waterways are subject to the Act’s protections and permitting requirements. Prior to the 2015 rule,  the WOTUS definition mainly applied to “navigable waters.”

However, the United States Environmental Protection Agency (EPA) and Army Corps of Engineers under the Obama administration proposed expanding the WOTUS definition under the Clean Water Act to include wetlands and intermittent flows. While support by many environmental groups, local governments  and agricultural interests opposed the change, believing that the new rule would subject road ditches, irrigation channels, and stormwater drainage systems to Act’s requirements. The EPA and the Corps finalized the new definition in 2015 but the rule put on hold in 2017 by the new Trump administration while a new version of the WOTUS definition was being drafted.

That hold was partially undone by the recent District Court ruling, which reinstated the 2015 rule in Maryland and 25 other states:

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.  …

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.

NACo had opposed the 2015 WOTUS definition over concerns that it would apply to county-owned stormwater and roadway structures. MACo also submitted comments prior to the 2015 rule being finalized, asking EPA to clarify that the rule’s language would not apply to county-owned ditches and storwmater drainage channels. Despite providing verbal assurances that the new rule would not apply to such structures, EPA refused to consider a clarifying amendment before the rule was finalized.

Useful Links

EPA WOTUS Rulemaking webpage

Prior Conduit Street Coverage of WOTUS