Last Thursday, the South Carolina District Court reinstated the Obama-era definition of “waters of the United States” (WOTUS) in roughly half the country, furthering the ambiguity in the never-ending saga over how to define WOTUS under the Clean Water Act. South Carolina Coastal Conservation League, et. al. v. Andrew Wheeler, et. al., No. 2:18-cv-00330, at *14 (D.S.C. Aug. 16, 2018). In its decision, the court invalidated the Trump Administration’s Executive Order suspending the Obama Administration’s WOTUS rule (the “Suspension Order”).

This injunction has the effect of re-employing the WOTUS rule in 26 states, but has no effect in another 24 states where the WOTUS rule had already been subject to previous injunctions preventing its implementation. The WOTUS rule now applies in 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.

By way of background, the Clean Water Act prohibits the discharge of pollutants from a point source into “navigable waters” without a permit, which are defined as “waters of the United States.” 33 U.S.C. § 1362(7). In 2015, the EPA and U.S. Army Corps of Engineers under the Obama Administration issued a rule broadening the definition of “waters of the United States” (the “WOTUS rule”) from the 1980 definition established under federal regulation. 80 Fed. Reg. 37054 (Jun. 29, 2015). The WOTUS rule was immediately challenged in various courts across the country, resulting in two orders that prevented the WOTUS rule from taking effect in 24 states. While this litigation ensued, on February 28, 2017, President Trump issued Executive Order 13778, which suspended the WOTUS rule and reinstated the 1980s definition of “waters of the United States” (the “Suspension Order”) in all states.

The district court’s decision did not substantively review how to define WOTUS, but rather invalidated the Suspension Order on administrative procedure grounds. Specifically, the SCCCL litigation addressed the contours of how far and how quickly a new administration can change the direction of federal policy. The court held that the Administrative Procedure Act provides “at least some fidelity to law and legal process” when a new administration “implement[s] different regulatory priorities.” South Carolina Coastal Conservation League, et. al. v. Andrew Wheeler, et. al., No. 2:18-cv-00330, at *14 (D.S.C. Aug. 16, 2018) (internal citations omitted). The court found that the Suspension Order had been issued in violation of the Administrative Procedure Act for two reasons. First, it was issued without providing for meaningful opportunity for comment because the government did not “solicit or consider any substantive comments on the change of regulatory definition.” Id. at p. 7. And second, the Suspension Order was arbitrary and capricious because the agencies did not provide a “reasoned analysis” supporting it. Id. at p. 14. The district court therefore granted the plaintiffs’ motion for summary judgment and issued a nationwide injunction enjoining it.

At this time, it is unclear what direction the WOTUS definition will take from here. Legal challenges continue to the WOTUS rule, the SCCCL decision may be appealed, and the Trump Administration may continue its attempt at enacting a new rule. We will keep you posted as developments arise.