By JORDAN STRICKLER

Kentucky Correspondent

CHARLESTON, S.C. — The Waters of the United States (WOTUS) issue once again has life.

A ruling by Judge David Norton in the U.S. District Court for the District of South Carolina declared the U.S. EPA had not followed the Administrative Procedures Act in finalizing its rule when it formally suspended WOTUS for two years to consider a clearer definition of “waters.”

Several environmental groups brought suit in February when the EPA finalized its rule to delay WOTUS, declaring the agency did not follow proper procedures, including solicited public comments on the rule, and asking the public to consider the merits of the two regulations from 1980 and 1982, to which the suspension would return the rule.

Those regulations defined “waters of the United States” as lakes, rivers and streams that passed between states. The new rule imposed during the Obama administration updated that definition to include streams, tributaries and wetlands that feed into major rivers and water bodies.

“This is a victory for families and communities across America who depend on clean water, and a rebuke to the polluting industries trying to gut this nation’s bedrock health and environmental safeguards,” said senior attorney Geoff Gisler, who represented the coalition of conservation groups led by the Southern Environmental Law Center.

“Water is a way of life in the South, where clean water is the lifeblood of our economy. We are thrilled the court rejected this administration’s blatant attempts to undermine safeguards that are critical to our nation’s welfare without being accountable to the American people.”

WOTUS is estimated to put about 3 percent more waterways under protection of the Clean Water Act (CWA). That would mean farmers who are not currently required to obtain permits for activities such as spraying and spreading fertilizer would have to acquire them or face steep fines.

The rule would include the addition of most creeks and streams adjacent to traditionally jurisdictional waters that are within the 100-year floodplain to a maximum of 1,500 feet. In addition, it would include isolated water bodies, such as ponds, with a “significant nexus” to navigable waters within a 100-foot floodplain and within 4,000 feet of the navigable water body.

Major waterways, such as rivers and lakes, are currently under the protection of the CWA and are not affected.

"We are back to where the 2015 rule is effective in California, which means trying to determine what waters are waters of the United States," said California Farm Bureau Federation Senior Counsel Kari Fisher, who has been monitoring a number of legal and administrative challenges to the rule.

"Step one is to officially repeal the 2015 rule, and then step two would be an actual replacement of the WOTUS definition."

Fisher said that process could take months, however. "There has been a lot of litigation from all sides every step of the way. Even though the administration has made it known they want to repeal and replace WOTUS, it's not an easy process."

A return to the previous rule could be expensive to farming, warned Oregon Farm Bureau Public Policy Counsel Mary Anne Cooper.

“Under the 2015 WOTUS rule, EPA could force farmers and ranchers to apply for a costly permit to do even the most basic work on their land, or potentially be hit with enormous fines and frivolous lawsuits,” she said. “These permits could be required for plowing, planting, applying pesticides and fertilizers and other normal farming activities on dry farm fields.

“The 2015 WOTUS rule goes far beyond Congressional intent and the lawful bounds of the CWA as articulated by previous Supreme Court decisions. At best, it is a solution in search of a problem; at worst, it is a federal land grab designed to give (the Oregon Department of Environmental Quality) and EPA control over Oregon’s farmland far beyond what the law calls for.”

An assembly of groups, led by the American Farm Bureau Federation, filed an appeal with the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va. The groups’ filing states “the ability of plaintiffs’ members to plan their projects and organize their affairs is highly sensitive to the scope of the agencies’ regulatory jurisdiction under the Clean Water Act. Allowing the WOTUS Rule to come into effect in 26 states will prove enormously disruptive to their operations, and indeed to the entire national economy.”

With the South Carolina ruling, the 2015 rule now is in effect in Iowa, Illinois, California, Washington, Oregon, Tennessee, Texas, Vermont, Virginia, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, Mississippi, Minnesota, Michigan, Massachusetts, Maryland, Maine, Louisiana, Hawaii, Delaware and Connecticut.

Because of court actions in other cases, the 2015 rule remains on hold in the other 24 states.