WOTUS on Hiatus for Some but Not All

The 'Waters of the U.S.' rule, or WOTUS, has been the topic of heated debate since it was first proposed over a year ago, but particulalry in the last four months since the rule was officially released by the EPA and Army Corps of Engineers in May 2015. On August 27, U.S. District Court Judge Ralph Erickson of North Dakota blocked the rule from taking effect after a dozen states filed for an injunction request.

Sep 1st, 2015

The 'Waters of the U.S.' rule, or WOTUS, has been the topic of heated debate since it was first proposed over a year ago, but particularly in the last four months since the rule was officially released by the Environmental Protection Agency and the Army Corps of Engineers in May 2015.

On one side, you have those staunchly opposed to it: conservatives, farmers, and oil and gas producers are among those who believe WOTUS is nothing more than a land grab, a thinly veiled attempt by EPA to snatch power away from the states. According to them, if WOTUS moves forward, you'll be seeking a permit for your puddles.

In the other camp, you have your usual band of supporters: the EPA (of course), environmental groups, and other organizations who believe that the rule will clarify much of the ambiguity left behind in the wake of the SWANCC and Rapanos court decisions (2001 and 2006, respectively).

The EPA has strongly defended its rule, fervently denying that it would result in the sort of overreach being suggested. The rule, the Agency has said, only protects the types of waters that have historically been covered under the Clean Water Act and does not add any new requirements for agriculture, one of the rule's most vocal opponents.

"It does not interfere with private property rights or address land use," said EPA Administrator Gina McCarthy, "and it does not regulate any ditches unless they function as tributaries." She added that the rule does not apply to groundwater or shallow subsurface flow, does not cover drain tiles, and does not change policy on irrigational water transfers.

But those who are against the rule aren't buying what the EPA is selling. Within just a few days of the rule's publication in the Federal Register on June 29, a flood of lawsuits had been filed. Thirty-one states and a dozen industry groups (primarily ag, energy, and building associations) filed motions to stop or delay the rule.

As August 28 loomed closer, it started to look like the rule might actually take effect as planned -- requests for injunction filed in Georgia and West Virginia had been unsuccessful. By August 27, it all hinged on North Dakota. There, 13 states had filed an injunction request, and on August 21, U.S. District Court Judge Ralph Erickson heard more than four hours of testimony. But how would he rule? And would he do it in time?

Like any good suspense novel, this had WOTUS followers on the edges of their seats. Then, at the eleventh hour (okay, it was more like late afternoon), the news broke: Judge Erickson had granted the injunction. The rule would be delayed until the full case could be heard.

Much rejoicing (and relief) ensued from states, farmers and other industry groups desperate to block the rule. But it was quickly tempered.

In a statement, EPA spokesperson Melissa Harrison said the injunction only applies to the 13 states involved: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

"In all other respects," she said, "the rule is effective on August 28." She said the agencies "are evaluating these orders and considering next steps in the litigation."

Angela Godwin
Chief Editor, WaterWorld

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