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Photo by Lea Kimley.

WOTUS court decision as clear as the mud it governs

By Leisa Boley Hellwarth, a dairy farmer and an attorney near Celina

A recent decision by the U.S. District Court for the District of South Carolina is clear as mud. And that mud is likely considered “Waters of the US” and governed by the Clean Water Act (CWA).

On Aug. 16, 2018, Federal Judge David C. Norton enjoined the suspension of the WOTUS (Waters of the US) Rule promulgated by the Obama Administration. The decision is problematic because it creates a patchwork of states where the WOTUS rule applies and others where it does not. WOTUS is now the law in 26 states, including Ohio. The other 25 are: Michigan, Pennsylvania, Virginia, Illinois, Iowa, Minnesota, Tennessee, New York, Vermont, New Hampshire, Maine, Massachusetts, Rhode Island, Connecticut, New Jersey, Delaware, Maryland, Oklahoma, Texas, Washington, Oregon, California, Hawaii, Louisiana, and Mississippi. The District of Columbia and U.S. territories are also subject to WOTUS. In the 24 other states, the WOTUS remains blocked by two other federal courts pending their review on the substance of the law.

The decision from South Carolina is based solely on procedure. The Court held that the Trump Administration did not follow appropriate notice and comment procedures as it implemented a two-year nationwide delay of the WOTUS rule — form over substance. Following correct procedure is an important consideration in our democracy and a separate issue from the substantive argument in favor of or opposed to WOTUS.

WOTUS attempted to define the scope of the CWA, in essence by clarifying which wetlands and small waterways are protected under the Clean Water Act of 1972. If the area in question is considered “Waters of the US” then CWA permits for releasing pollutants are required or potential penalties of $52,414 per day apply. Farmers, industry groups and 30 states have challenged the WOTUS rule. Many dislike the over-reaching impact of the language. Other states, including California, New York, Vermont and Rhode Island, as well as environmental groups, support it.

This is likely not the last word on the procedural issues. The National Association of Manufacturers has already indicated they plan to appeal the recent ruling. Other industry and agriculture groups are expected to appeal, as well.

Earlier this year, on Jan. 22, 2018, the U.S. Supreme Court unanimously held that challenges to the WOTUS Rule, like the one just decided by the district court in South Carolina, belong in federal district court. Both the Obama and Trump Administrations had pressed for functional rather than literal interpretations of the Clean Water Act, thereby enabling the appellate courts to claim jurisdiction. The Supreme Court found that while it may not be the most efficient use of federal resources, there was no question in the law about where challenges to the Clean Water Ruling belong. Justice Sonia Sotomayor wrote the opinion and stated, “Congress has made clear that rules like the WOTUS Rule must be reviewed first in federal district courts.”

The choice of court — district or appeals — is significant because it affects the resources needed to litigate the merits of challenges, sets the statute of limitations for filing lawsuits and helps determine whether actions can be challenged in subsequent civil or criminal proceedings. District courts are also more tilted toward overturning government actions, and the recent South Carolina decision is a prime example.

Many legal analysts believe the WOTUS Rule is due to the 2006 Supreme Court Case, Rapanos v. United States. John Rapanos of Michigan challenged federal jurisdiction to regulate isolated wetlands under the Clean Water Act. Before the case made it to the Supreme Court, Rapanos served three years of probation and paid $5,000 in fines. His crime? He allegedly filled 22 acres of wetland that he owned with sand, in preparation for the construction of a mall without filing for a permit. He argued that the land was not a wetland and that he was not breaking the law, as the land in question was up to 20 miles from any navigable waterway.

While five Supreme Court justices agreed to void rulings against the defendants (Rapanos had a business partner who was also charged), who were prosecuted for impacting a wetland incidental to commercial development, the court was split over further details, with the four more conservative justices arguing in a plurality opinion for a more restrictive reading of the term “navigable waters” than the four more liberal justices. Justice Anthony Kennedy did not fully join either position. Because no single opinion garnered a majority of the votes, it is unclear which opinion sets forth the controlling test for wetlands jurisdiction. The case was remanded to the lower court. Ultimately, Rapanos agreed to a nearly $1,000,000 civil penalty to the EPA without admitting to any wrongdoing. He also agreed to recreate approximately 100 acres of wetlands and buffer areas.

Citing the confusion created by Rapanos, on June 29, 2015, the Army Corps of Engineers and EPA promulgated a new 75-page regulation attempting to clarify the scope of “Waters of the United States,” to take effect on Aug. 28, 2015. And that is when the trouble started. Lawsuits were filed with district courts in various parts of the country. When the Trump Administration took over, they sought to delay enforcement by rule suspension. That led to the lawsuit in South Carolina and the recent decision detailing the problems with their procedure.

While there will likely more rulings on substance and appeals over procedure, the WOTUS Rule is now law in Ohio. Regarding the ongoing litigation, wise men say “he who slings mud generally loses ground” and, perhaps, triggers the WOTUS rule.

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