October 2018 Update Regarding Waters of the United States Rulemaking

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October 2018 Update Regarding Waters of the United States Rulemaking

By: Steve Williamson, CPG

The latest news in the continuing chronicle regarding “Waters of the United States” came in the middle of August when Judge David C. Norton of the U.S. District Court for the District of South Carolina terminated the EPA and Corps of Engineers joint rule that delayed the implementation of the Obama-era Clean Water Act (CWA) in his ruling on the South Carolina Coastal Conservation League (SCCCL), et al., versus Andrew Wheeler, et al. case. The EPA’s Waters of the United States webpage can be accessed here.

The result of Judge Norton’s decision is that the Obama-era CWA has been brought back to force in 26[1] states. The remaining 24[2] states have orders from other district courts that bar enforcement of the 2015 rule regardless of the administrative delay. Ohio, Michigan and Tennessee are seeking a decision in the U.S. District Court for the Southern District of Ohio that would bar the 2015 CWA rule from taking effect.

In addition, the EPA and the Corps of Engineers have requested that Judge Norton’s order be stayed pending a notice of appeal to the U.S. Court of Appeals. The agencies argued that enforcing the rule in some states creates a lot of uncertainty and that it would be burdensome to regulators, as there are thousands of requests for jurisdictional determinations and thousands more pending applications for CWA permits. Industry groups have appealed the judge’s decision, hoping to overturn the August 16th decision.

On September 12, Judge George C. Hanks, Jr., of the U.S. District Court for the Southern District of Texas, blocked implementation of the 2015 CWA in Texas, Louisiana, and Mississippi, bringing the number of states that do not have to comply with the CWA to twenty-three.

In another CWA case, the applicability of the Clean Water Act (CWA) for contaminated groundwater flowing into surface water was denied by the U.S. Court of Appeals for the 6th Circuit, claiming that the language of the CWA applied to point source pollution that was discharged directly into a surface water body. This is contrary to two earlier circuit court rulings that found that the CWA did indeed apply to facilities that allowed contaminated groundwater to flow into surface water.

Since that ruling, the American Petroleum Institute and the County of Maui, Hawaii are arguing that because of the difference in circuit court opinions on the CWA, it is now imperative that the Supreme Court take up the case. While this recent ruling is specifically concerning whether contaminated groundwater is equivalent to a point source that discharges into jurisdictional surface waters, if the Supreme Court takes up the case, it may be likely that the justices will provide a ruling on the applicability of the 2015 CWA and the definition of “Waters of the United States”.

[1]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, Washington

[2] Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Missouri, Montana, Nebraska, New Mexico, Nevada, North Carolina, North Dakota, South Carolina, South Dakota, Utah, West Virginia, Wisconsin, and Wyoming

Published in Cox-Colvin’s October 2018 Focus on the Environment newsletter.

Steve Williamson is a Senior Scientist with Cox-Colvin & Associates, Inc. He holds a BS degree in Environmental Health and an MS degree in Hydrogeology from Wright State University. Mr. Williamson has over 30 years' experience working on brownfields, solid and hazardous waste, and groundwater contamination projects in Ohio and the Midwest.