United States: Expansion Of The "Waters Of The U.S." Rule Delayed; Replacement Rule In The Works

On February 6, 2018, the EPA formally suspended the Obama-era "Waters of the U.S." (WOTUS) rule until 2020. This delayed implementation will provide the Trump administration with additional time to issue a clearer, and presumably more industry-friendly, replacement rule. The administrator of the EPA, Scott Pruitt, has indicated that a draft replacement rule will be completed this spring, with a final new rule by the end of the year.

The original WOTUS rule sought to broadly define "waters of the United States" and would have expanded the reach of the Clean Water Act and the Act's permitting requirements. Though the rule was initially scheduled to take effect on August 28, 2015, it was mired in legal challenges from the start. On October 9, 2015, the Sixth Circuit issued a nationwide stay of the rule. These lawsuits also implicated a threshold, procedural question of whether appellate courts had original jurisdiction to hear challenges to the WOTUS rule or if such cases had to be first brought in federal district courts.

The Supreme Court's decision on this procedural issue ultimately prompted the Trump administration to act and delay the rule. On January 22, 2018, the Supreme Court ruled that challenges to the WOTUS rule must initially be brought in district court and instructed the Sixth Circuit to dismiss its case. Accordingly, the Sixth Circuit dismissed its case and lifted the nationwide stay, which would have allowed implementation of the rule. To prevent this from happening, the EPA reacted quickly, before the Sixth Circuit entered its dismissal, and suspended the WOTUS rule for two years.

The EPA's actions have not been without controversy. Environmental groups and eleven states have filed lawsuits challenging the delay to the WOTUS rule. Whether these legal challenges will ultimately prove successful remains unclear. But for the time being, the WOTUS rule is suspended and projects in real estate, construction, manufacturing, energy, agriculture, and other sectors can move forward without facing expanded jurisdiction under the Clean Water Act. The EPA plans to issue a proposed new regulation in April or May of 2018, with a finalized rule by the end of the year.

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