The American Farm Bureau Federation took quick action following a federal judge’s ruling in South Carolina that would make the controversial 2015 Waters of the U.S. rule immediately applicable in 26 states under the Clean Water Act.
On Thursday, U.S. District Judge David Norton ruled the Trump administration failed to comply with rulemaking requirements in suspending the rule and reinstated the WOTUS rule nationwide. Federal courts in North Dakota and Georgia, however, have already granted injunctions blocking the rule in 24 states.
On Friday, AFBF and a coalition of business organizations notified the U.S. District Court in South Carolina they will appeal the court’s ruling.
They also notified a U.S. District Court in Texas — where AFBF filed its original legal challenge to WOTUS — of the South Carolina ruling, urging the court to issue a nationwide injunction against the 2015 WOTUS rule.
In November 2017, the EPA and Army Corps of Engineers delayed implementation of WOTUS to provide “continuity and regulatory certainty for regulated entities, states and tribes, agency staff and the public while the agencies continue to work to consider possible revisions,” AFBF and the coalition stated in their notice to the Texas court.
In August 2015, a North Dakota district court blocked implementation of WOTUS in 13 states. In June 2018, a Georgia district court blocked its implementation in 11 states, concluding plaintiffs “overwhelmingly” demonstrated the likelihood of success on the merits of their challenge. That court also stated that if the rule ever went into effect, it would trigger “immediate irreparable harm,” AFBF and the coalition pointed out.
In October 2015, the 6th U.S. Circuit Court of Appeals issued a nationwide stay but dismissed the case and lifted the stay following the January 2018 U.S. Supreme Court ruling stating the Court of Appeals did not have jurisdiction to hear challenges to the rule.
The South Carolina court ruling now puts WOTUS into effect for the first time in nearly three years, but only in the 26 states where no preliminary injunction is pending.
“Thus a legally suspect regulation of immense practical importance has come into effect in a patchwork of 26 states,” the notice to the Texas court stated.
AFBF and others have argued WOTUS greatly expands federal regulatory authority in violation of congressional intent.
“The ability of plaintiffs’ members to plan their projects and organize their affairs is highly sensitive to the scope of the agencies’ regulatory jurisdiction under the Clean Water Act. Allowing WOTUS to come into effect in 26 states will prove enormously disruptive to their operations and indeed to the entire national economy,” AFBF and the coalition said in the court notice.
The WOTUS rule’s now piecemeal application compounds these far-reaching and deleterious effects. That is a particularly troubling prospect given that plaintiffs’ members manage construction, extraction and farming across multiple states, creating conflicting permitting obligations, they said.
“A crazy-quilt regulatory environment is simply untenable,” they said.
A nationwide preliminary injunction should be granted as expeditiously as possible, they told the court.
The states that are impacted by the ruling are: 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.