By Craig Regelbrugge, AmericanHort
On January 22, the Supreme Court in a unanimous decision ruled that challenges to EPA’s 2015 Waters of the United States (WOTUS) Rule should have been brought in district courts, not the federal appellate courts. As a result, the nationwide stay issued by the Court of Appeals for the Sixth Circuit that prevented the WOTUS rule from being implemented is no longer in effect.
There have been various WOTUS lawsuits. One of the district court’s rulings allowed 13 states to stay the rule but not the other 27. The Sixth Circuit ruling stayed the rule in all 50 states, but now it has been vacated, allowing the district courts to rule as they deem fit. There will be a rush by plaintiffs to seek a stay in the various district courts but there is some possibility the rule could go into effect in some of the states—temporarily at least.
EPA and the Army Corps of Engineers have been working vigilantly to repeal WOTUS and replace it with something much more sensible—allowing state and local jurisdictions to do their jobs. However, that process is not complete and will not be until the end of 2018. With this in mind, the Trump Administration is almost certain to join in the plaintiffs’ lawsuits to stay the rule in the various district courts but there is no certainty they will succeed.
The Supreme Court’s decision will create legal uncertainty until the new rule is written. EPA and the U.S. Army Corps of Engineers have not yet finalized either their proposed repeal of the 2015 rule or their proposal to extend the application of the 2015 rule by two years. It is not yet clear when the agencies will finalize either action, but the whole reason they proposed to extend the effective date of the WOTUS rule by two years was to avoid the scenario we are now facing. Stay tuned.