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WOTUS rule in effect in 22 states

by Government Affairs Team | Sep 12, 2018

BREAKING NEWS: On September 19, 2018, the North Dakota District Court added the state of Iowa to the order enjoining the 2015 WOTUS rule. 

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BREAKING NEWS:
On September 11, 2018 the U.S. District Court for the Southern District of Texas stayed WOTUS in the following states:  Texas, Louisiana, and Mississippi.  WOTUS remains in effect in 23 states:  California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia and Washington.

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Work continues within the Trump Administration on the rewrite of the 2015 Clean Water rule (WOTUS), and GCSAA remains a committed participant in these discussions to ensure that the new rule properly considers the role water plays on golf courses and how superintendents serve as stewards of those waters. This foundational definition will determine the appropriate balance between state and federal regulatory control over surface waters. GCSAA supports the protection of surface waters and cooperative federalism.

In addition, the battle over WOTUS continues to play out separately in the courts. There are many pending lawsuits in the federal courts related to redefining WOTUS. The following is an update on the status in the federal courts.

Background

On Aug. 16, 2018, the U.S. District Court for the District of South Carolina issued a ruling enjoining nationwide the Trump Administration’s rule that delayed, until February 2020, implementation of the Obama WOTUS Rule. The district court's decision was based on procedural grounds – the court said the Trump delay rule violated the Administrative Procedure Act (APA) because EPA and the Corps didn’t take comment on the substance of the Obama WOTUS Rule or the prior regulations that would stay in place during the delay of the Obama Rule.

The decision will immediately impact only these 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. WOTUS remains stayed and does not apply in the remaining 24 due to other legal actions in those states.

This action is being appealed

In striking the delay rule, the district court failed to consider several key relevant factors, including the fact that states and industry will be irreparably harmed if the 2015 WOTUS Rule is implemented. Every court that has considered the merits of the Obama WOTUS Rule has found that states' and industry's challenges to its legality are highly likely to succeed. The court should have considered the damage to the public interest that will result from implementing and enforcing a WOTUS definition that is likely unlawful and unclear. It also should have considered the harm to the public interest that will result, as a practical matter, from implementing a patchwork regulatory regime across the country for Clean Water Act permitting, which will waste agency resources and slow permitting for critical economic activity, including key infrastructure projects.

While ignoring the harm that will clearly befall states' and the nation's construction, real estate, mining, manufacturing, forestry, agriculture, energy, wildlife conservatio, and public health and safety sectors from implementation of the Obama Rule, the court also ignored that environmental groups failed to demonstrate any harm from maintaining the status quo. As noted by the Sixth Circuit Court of Appeals, there is no "indication that the integrity of the nation’s waters will suffer imminent injury" if the Obama WOTUS Rule does not take immediate effect and the Agencies continue to implement the "familiar" pre-2015 rules that have been in place for decades.

Contrary to the court's decision, the agencies didn't need to take comment on the merits of the Obama and pre-Obama WOTUS definitions to promulgate the delay rule. The purpose of the delay rule wasn't to pick one WOTUS definition over another, it was to avoid an uncertain, shifting patchwork of regulations where different definitions of WOTUS apply in different states. The agencies clearly took comment on that exact issue, and in doing so satisfied the APA.

Since Aug. 9, several industry groups have moved to appeal the district court's decision and continue to press for a nationwide injunction against the Obama WOTUS Rule in their separate Texas district court litigation.

GCSAA Compliance Support

For those GCSAA members in states where the 2015 WOTUS rule is now in effect, GCSAA has a webinar to help you comply with the rule. Contact government affairs team for WOTUS-related issues or questions at 800-472-7878.