WOTUS Definition Court Challenges Continue

The Environmental Protection Agency and the Army Corps of Engineers published a final rule in the Federal Register that repeals their 2015 Clean Water Rule defining the scope of jurisdiction under the Clean Water Act. The repeal, published Oct. 22, is scheduled to take effect on Dec. 23. It will cause the “Waters of the United States” definition to revert to where it stood before the 2015 rule. These changes affect whether water infrastructure and wetlands may be subject to regulation under the Clean Water Act.

Because of varying court decisions, the 2015 rule currently governs Clean Water Act jurisdiction in California, 21 other states, the District of Columbia and U.S. territories. Meanwhile, the pre-existing standards apply in 27 states, and the status in New Mexico remains unclear. If the repeal rule takes effect in December as scheduled, California and the rest of the nation will fall under the pre-2015 standards.

On the day the repeal rule was published, the New Mexico Cattle Growers’ Association sued in New Mexico to challenge the pre-2015 definition of WOTUS as overly broad in New Mexico Cattle Growers’ Assn. v. U.S. EPA.

The day after the repeal was published, a coalition of environmental groups filed a lawsuit in South Carolina seeking to have the repeal rule rendered null and set aside. If the legal challenge is successful in South Carolina Coastal Conservation League v. Wheeler, the 2015 standard will continue to apply in states where it does now. The case was assigned to Judge David C. Norton who, in 2018, stopped a Trump Administration rule that sought to delay implementation of the 2015 rule for 2 years.

Meanwhile, the Trump Administration is continuing to work to replace the 2015 rule with its own WOTUS definition. The EPA and Army proposed a new definition in February, took comments and said they expect to issue a final replacement definition in December.

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