Earlier this month a federal court in South Carolina ruled that the Environmental Protection Agency’s (EPA) move to delay the start date of the Waters of the United States (WOTUS) rule until 2020 was not valid. As a result, the rule was allowed to go into effect for 26 states.
This decision impacts: 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.
The remaining 24 states are currently under different federal court orders that stopped the WOTUS rule from taking effect completely. Two federal courts, one in North Dakota and one in Georgia, found that the rule violated the U.S. Constitution as well as the Clean Water Act. Consequently, those 24 states will not be impacted by the South Carolina ruling.
With this South Carolina court decision, we now have the unique situation of more than half of the states in the union being forced to deal with a regulation considered unconstitutional and illegal by two separate federal courts. What makes the matter even more unfortunate is the South Carolina court’s ruling was based on how the move to delay the rule was implemented and not about the legality of the WOTUS rule itself.
Naturally, the EPA is appealing the South Carolina court’s ruling. Additionally, the EPA is unlikely to enforce the WOTUS rule in those 26 states. NCA and our allies on the Waters Advocacy Coalition have asked a federal court in Texas to apply the same rationale as the N.D. and Ga. courts and enact a nationwide stay on WOTUS. If successful, the controversial water rule would no longer be a concern for the entire U.S.
For private clubs in the 26 states, the best course of action is to be prepared but be realistic. With the EPA appealing this S.C. decision, there are no plans to pursue enforcement under the WOTUS rule. With luck, this untenable split in the federal courts will be resolved and a nationwide stay on the WOTUS rule will be handed down shortly.
With this ruling, there will be renewed emphasis on defunding this rule in the pending spending bills. However, Democratic opposition to such a move will likely prohibit such defunding. As such, it looks as though the courts and the EPA will need to resolve this.
We will continue to work with our allies at EPA to see that the WOTUS rule is removed and replaced with a more appropriate rule as soon as possible. Until then, if you have any questions or concerns regarding this issue, please contact NCA Vice President of Government Relations & General Counsel Brad Steele at [email protected].