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June 18, 2018

Costly WOTUS Rule Now Barred In Half The United States

On Friday, June 8, a federal judge in Georgia granted a preliminary injunction against the Obama administration’s 2015 Waters of the United States (WOTUS) rule, which MSCI opposes. In blocking the rule, the court ruled that the states have a substantial likelihood of winning their claims against the 2015 rule.

The decision means the WOTUS rule is now blocked in almost half the country. The June 8 preliminary injunction covers the 11 states (Georgia, Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, Utah, West Virginia, Wisconsin and Kentucky) while a previous district court ruling blocks the rule in 13 states: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.

The Trump administration also has delayed implementation of the rule, but that action faces challenges in courts across the country. If one of those challenges to the delay rule win, it could kick the 2015 rule back into effect. Why does MSCI oppose this rule? As a 2017 report from the nonpartisan think tank the American Enterprise Institute (AEI) by scholar Nathan Hendricks explains:

“To protect navigable waters, the Clean Water Act’s jurisdiction extends to waters linked to navigable ones. But because essentially all waters are connected, under the 2015 Waters of the United States (WOTUS) rule, agencies will assess the degree of connectivity on a case-by-case basis. … All this confusion threatens property rights. Farmers often will not know if their land is under Clean Water Act jurisdiction, yet they can face fines of $25,000 per day of violation for certain activities. If farmers are aware that their land is under Clean Water Act jurisdiction, then they must apply for costly permits: up to $28,915. Moreover, the WOTUS rule fails to address pollution from nonpoint sources and ongoing farming activity. It does not estimate the cost and benefit trade-offs well.”