States Sue Trump Administration over WOTUS Repeal
 
More than a dozen states and the City of New York filed suit against the Trump Administration over the repeal of the 2015 “Waters of the United States” (WOTUS) rule. The states claim the Environmental Protection Agency (EPA), which issued a new rule without the protections, ignored current science on the connectivity of smaller or infrequently flowing bodies of water.
 
California, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, New Jersey, Oregon, Rhode Island, Vermont, Virginia, Washington, New York City and the District of Columbia also signed on to the complaint.
 
The two previous administrations based their regulations on an opinion from former Justice Anthony Kennedy, stating that Clean Water Act (CWA) regulations apply to waters with a “significant nexus” to navigable waters. Such a nexus could include chemical, biological, or hydrological connections. The final rule will eliminate protections for streams that flow only after rainfall or snowmelt, and protections for wetlands without surface water connections to larger waterways will also be removed. Environmental groups are already challenging the rule in court. 11 groups, including the National Wildlife Federation and the Natural Resources Defense Council, filed a suit in the U.S. District Court for the District of South Carolina. The lawsuit alleges that the new rule is legally flawed, violating both the Administrative Procedure Act and the Constitution’s due process clause, which, the lawsuit says, “requires rulemakings to be undertaken with an open mind.” In a separate case a lawsuit was filed on behalf of the New Mexico Cattle Growers’ Association. The lawsuit challenges the recodification of the pre-2015 WOTUS definition on the grounds that such an action was not open to public comment and was not submitted to Congress for review under the Congressional Review Act. 

APWA submitted comments to the EPA on the proposed rule earlier this year, showing appreciation for the clarity the revised definition provides in terms of ditches and municipal separate storm sewer systems (MS4’s). However, APWA expressed serious concern regarding the revised definition and assumptions made in the proposed rule, which are still valid with the new final rule. In three key areas, the new proposed rule could do serious harm to public works professionals and programs:
  • Continued permitting uncertainty;
  • Assumptions regarding cooperative federalism; and
  • Additional costs for water providers and water customers.
For more information on the new WOTUS rule, please contact APWA Government Affairs Manager Sean Garcia.