Supreme Court Decision on WOTUS Jurisdiction Spurs EPA Action

On January 22, the U.S. Supreme Court ruled that challenges to the Waters of the U.S. (WOTUS) rule must be heard in district courts rather than in U.S. Federal Courts of Appeal presenting a procedural hurdle to the Trump Administration’s efforts to repeal and replace the 2015 rule with a narrower rule.

Industry and local governments challenged the WOTUS rule in the Sixth Circuit Court of Appeals asserting that the rule unconstitutionally expanded the CWA’s reach and misapplied Justice Anthony Kennedy’s “significant nexus” opinion in the 2006 Rapanos case.  The Sixth Circuit stayed the case while the Supreme Court decided the jurisdictional issues.

Now that the Supreme Court has ruled that the district courts are the proper body to determine the merits of the case, the Sixth Circuit will likely lift the stay and the WOTUS rule could go back into effect in most of the country unless a district court agrees to issue a nationwide injunction.

In late January, EPA and USACE sent a final rule to the White House Office of Information and Regulatory Affairs for review in hopes of wrapping up the “effective date” rule before the 6th Circuit lifts the stay. The agencies beat the clock by publishing a final rule on February 6 to add an “applicability date” to WOTUS that would delay the effective date of the 2015 rule until 2020.

The finalization of the “effective date” rule will likely result in a new wave of lawsuits challenging the Trump Administration’s administrative actions since courts have ruled that the “effective date” of a rule cannot be changed after it takes effect. The 2015 rule had an effective date of August 28, 2015, but implementation is currently on hold due to the stay.

The rule to repeal WOTUS will likely be finalized after the “effective date” rule.  These steps would give the Trump Administration until 2020 to replace the WOTUS rule with a new, narrower definition of “Waters of the U.S.” In testimony before the Senate Environment and Public Works Committee recently, EPA Administrator Scott Pruitt indicated the agency would propose a replacement rule this spring.