On August 16, 2018, a federal district court judge in South Carolina issues a decision in litigation over the U.S. Environmental Protection Agency’s (EPA) and U.S. Army Corps of Engineers’ (Corps’) addition of a future applicability date for the 2015 “Waters of the U.S.” (WOTUS) rule, referred to in the court’s decision as the “Suspension Rule.” Earlier this year, EPA issued a final rule which added a February 6, 2020 effective date to the WOTUS rule, which is currently the subject of ongoing litigation and is under a judicial stay in twenty-four states.  EPA and the Corps are also in the process of rescinding and replacing the WOTUS rule that would extend federal Clean Water Act (CWA) jurisdiction to remote wetlands and dry creek beds based on its overbroad definition. The addition of the applicability date, or “Suspension Rule,” was intended to provide additional time for EPA and the Corps to finalize their rescission and replacement. The scope of CWA jurisdiction determines the area where National Pollutant Discharge Elimination System (NPDES) Pesticide General Permit (PGP) is required.

Several environmental groups and some states challenged the Suspension Rule, alleging EPA and the Corps violated the Administrative Procedure Act (APA) in promulgating the rule. In Thursday’s ruling, Judge David C. Norton, relying on Fourth Circuit precedent, held that EPA and the Corps violated the APA by failing to solicit and consider “meaningful” public comments on the Suspension Rule. Judge Norton issued a nationwide injunction that lifts the Suspension Rule. EPA and the Corps are expected to appeal the ruling. There are also active petitions in other district courts seeking a nationwide stay of the 2015 WOTUS rule.

The lifting of the Suspension Rule does not impact the judicial stays of the 2015 WOTUS rule that cover almost half the states, preventing implementation in those jurisdictions.  However, it effectively means that the WOTUS rule is in place in the twenty-states not covered by a judicial stay at this time. The 26 states (in alphabetical order) are as follows: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia, and Washington.

With the exception of New Hampshire, all of the 26 above-reference states administer their own PGPs. Aerial applicators with concerns about changes to the scope of coverage in the wake of South Carolina court decision should contact their state permitting authority.  NAAA will continue to push for an expeditious rescission of the 2015 WOTUS rule and explore legislative options within the 2018 Farm Bill.