Federal judge places resolution of Georgia's water lawsuit in Trump administration

By David Pendered

The federal judge in Brunswick who ruled in favor of Georgia’s lawsuit seeking to overturn an Obama-era water rule has thrown it to the Trump administration to decide which waterways in 11 states are overseen by the federal government and which are controlled by the states.

turtle, wildlife, wotus

A turtle rests in shade along a tributary to Soap Creek in Cobb County. The Trump administration plans to remove an Obama-era rule that could have protected the tributary under the federal Clean Water Act. Credit: David Pendered

The immediate prospects of the Trump administration’s proposal are unclear.

The administration has been working on a replacement rule regarding the Clean Water Act since Feb. 28, 2017. That’s the date President Trump signed the executive order to replace Obama’s Waters of the United States rule. Trump issued his executive order within the politically significant first 100 days of his term in office.

Trump had acted swiftly to remove a rule  vehemently opposed by Republicans. When the rule was implemented, then House Speaker John Boehner said in a statement it was a “raw and tyrannical power grab.” Then President Obama said in a statement the rule was, “another step towards protecting the waters that belong to all of us.”

Following a flurry of activity that led to proposed rule making, no public action on a successor to the WOTUS rule seems to have occurred since a public comment period closed April 15. The proposed rule would erase the Obama-era rule and revert to the previous regulation – which Obama’s administration had sought to tighten.

More than 11,409 responses to the proposals from the Trump administrations have been received. Each response can have multiple signers. Examples include a response supporting the Trump administration from the Van Buren County [Tenn.] Farm Bureau, with seven signatures; and a response opposing the proposed changes sent by the New Mexico Acquia Assoc., which says it represents hundreds of entities that get water from irrigation ditches, or acquias.

wotus, sandy springs

An Obama-era rule regarding the Clean Water Act gave the federal government greater control over runoff into bodies of water, including tributaries that contribute to the Chattachoochee River in Sandy Springs. Credit: David Pendered

Turmoil at the top of the Environmental Protection Agency may have affected the progress of the rule-making project. The EPA is co-leading the effort and it was without a confirmed administrator for almost eight months.

Scott Pruitt, EPA’s former chief, stepped down July 6, 2018 following a number of ethics controversies outlined in a report by thehill.com. The Senate confirmed Andrew Wheeler as EPA administrator Feb. 28. Wheeler often is portrayed as a former lobbyist for coal and uranium. His profile, according to a report by propublica.com, also includes work as a ranking Senate staffer who had a hand in devising, “every major piece of environmental and energy-related legislation before Congress for over a decade….”

Georgia filed its federal lawsuit against the Obama-era WOTUS rule July 29, 2015. Then Attorney General Sam Olens portrayed the rule as federal overreach:

  • “Under this excessive and expensive rule, a farm pond, or even a homeowner’s backyard could be subject to federal regulation. As the federal government continues to issue burdensome and unconstitutional executive directives at an alarming rate, I remain steadfast in my commitment to protect and defend the interests of Georgians.”

Lisa Godbey Wood

U.S. District Judge Lisa Godbey Wood issued her final ruling Aug. 21 in the case brought by Georgia and joined by 10 states.

Until the Trump administration creates a replacement for the Waters of the United States rule, Wood ordered a continuance of the temporary ban of the ordinance she ordered in June 2018. The preliminary injunction prevents the enforcement of the Obama-era rule in the 11 states.

Wood ruled that any replacement measures she could impose would not beneficial. Wood’s final ruling observes:

  • “[A]n order vacating the Rule may cause disruptive consequences to the ongoing administrative process. The more prudent course of action here is to allow the Agencies to continue their efforts to change the WOTUS Rule in light of the serious defects identified in this Order while leaving this Court’s existing preliminary injunction in place.”

David Pendered, Managing Editor, is an Atlanta journalist with more than 30 years experience reporting on the region’s urban affairs, from Atlanta City Hall to the state Capitol. Since 2008, he has written for print and digital publications, and advised on media and governmental affairs. Previously, he spent more than 26 years with The Atlanta Journal-Constitution and won awards for his coverage of schools and urban development. David graduated from North Carolina State University and was a Western Knight Center Fellow. David was born in Pennsylvania, grew up in North Carolina and is married to a fifth-generation Atlantan.

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