On Aug. 16, the U.S. District Court in South Carolina issued a summary judgment against the Environmental Protection Agency’s (EPA’s) two-year delay of the 2015 Waters of the U.S. Rule, reinstating the rule in all but the 26 states listed below due to earlier judicial stays.
Due to current developments, it’s unlikely the 2015 rule will be in effect for long.
The National Stone, Sand and Gravel Association (NSSGA) and other industries, as a litigation coalition, are appealing this decision and pursuing a judicial stay of the 2015 rule in the parts of the United States not covered by the existing stays and considering other legal options.
Additionally, the United States government, states and other litigants will likely appeal the Aug. 16 decision and the proposed replacement rule is under review at the White House.
If operators have a Clean Water Act 404 dredge and fill permit pending in any of the states where the rule is not in effect, keep an eye on these developments. Any operators considering a permit application in a state where the rule is now in effect, you may want to hold off until this issue is resolved. The decision should not affect existing permits at this time.
NSSGA continues to pursue every option to oppose the 2015 WOTUS rule, which would cause dry stream beds and other marginal features to be considered waters of the United States, requiring costly permits and mitigation.
The 26 exempted states are:
- New Mexico.
- North Carolina.
- North Dakota.
- South Carolina.
- South Dakota.
- West Virginia.