Action by the Courts, Administration, and Congress
State officials in 31 states, along with dozens of industrial, agriculture and environmental groups, have filed legal challenges to the 2015 WOTUS rule. In August 2015, a federal district court in North Dakota blocked implementation of the WOTUS rule in 13 states, and in October of 2015, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the rule.
In the 114th Congress, both the House and the Senate weighed in against the rule, passing the Regulatory Integrity Protection Act (H.R. 1732), and a Resolution of Disapproval of the Waters of the U.S. Rule (S.J. Res. 22), which would both prohibit federal bureaucrats from implementing the rule.
At the beginning of his term, President Trump issued an executive order instructing EPA and the Corps to review and, as necessary, revise the 2015 rule in light of the policy objectives of promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the states under the Constitution.
The agencies responded in July by proposing to rescind the 2015 WOTUS rule and hosting a dozen public meetings from September through November to give states, land owners, small businesses and other groups the opportunity to provide input on a future revised WOTUS rule. EPA Administrator Scott Pruitt has indicated that the agencies hope to propose a revised rule by April or May of 2018.
On January 22, 2018 the Supreme Court issued a unanimous ruling in the case of National Association of Manufacturers v. Department of Defense, stating that challenges to the WOTUS rule will be heard in district courts. As a result, the Sixth Circuit’s nationwide stay will be lifted, though the North Dakota District Court stay that protects 13 states will remain in place.
To address this regulatory confusion and avoid patchwork implementation of the 2015 WOTUS rule, the EPA and Army Corps are postponing the applicability date of the Obama-era rule by two years, providing regulatory continuity for stakeholders while the agencies work to consider repealing the 2015 WOTUS Rule and publishing a revised WOTUS definition. Several states and environmental groups have already pledged to challenge the applicability delay in court.