US judge halts Waters of US rule delay

A federal judge granted an injunction against the federal government's plan to delay the 2015 Waters of the US (WOTUS) rule, effectively putting it in place for half of the country.

Judge David Norton of the US District Court for the District of South Carolina ruled today that the US Environmental Protection Agency and Army Corps of Engineers violated federal law by suspending the rule in February without going through a formal public consultation period.

Norton's decision means the 2015 rule, which redefined 30-year-old regulations on what waters were protected by federal oversight, will go into effect for the 26 states where district courts have not halted the regulation. The 6th US Circuit Court of Appeals reversed its nationwide injunction of the Waters of the US rule earlier this year after the Supreme Court determined that challenges to the regulation belonged in district courts.

The rule is still suspended for the 24 states involved in federal district court cases in North Dakota and Georgia.

EPA and the corps in February completed rules that would delay implementation by two years, until February 2020, as it works to revise and replace the regulation.

Environmental groups sued, saying EPA and the corps did not do enough to consult the public on their plans and failed to consider the implications of suspending the 2015 rule. A group led by South Carolina Coastal Conservation League and Charleston Waterkeeper filed the South Carolina case. A separate lawsuit filed by 11 states is still pending in the US District Court for the Southern District of New York.

The agencies had said that they did not have to engage in a formal public comment period as required by the Administrative Procedures Act because they were just suspending the rule and not substantively reconsidering the underlying rule from the 1980s already in place. They also said the 21-day comment period imposed after the notice of proposed rulemaking was published in November 2017 was sufficient.

But the questions posed during that comment period time did not include anything on the merits of the Waters of the US rule or the 1980s regulation even though the suspension would temporarily roll back the 2015 changes. And that is an issue because "the definition of 'waters of the United States' is drastically different under these two regulations," Norton said.

"An illusory opportunity to comment is no opportunity at all," Norton said. He mentioned the 200-day comment period that was given to the Waters of the US rule during the more than four years of that it was under consideration. The agencies received more than 1mn comments in response to that review.

"This stands in sharp contract to the Suspension Rule, which received over 680,000 public comments in the few weeks that public comment was open and was promulgated in mere months."

EPA said it and the corps were reviewing Norton's order. The American Farm Bureau Federation and National Mining Association, which were among industry groups that made filings in support of the EPA and the corps, did not immediately return requests for comment.