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 original WOTUS rule sought to broadly define “waters of the United States,” which 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 legal challenges also implicated a threshold, procedural question of whether appellate courts had original jurisdiction or if cases challenging the WOTUS rule had to be first brought in federal district courts.
On January 22, 2018, the Supreme Court ruled on the procedural issue, deciding that challenges to the WOTUS rule must initially be brought in district court and instructing the Sixth Circuit to dismiss its case. This dismissal will cause the nationwide stay to be lifted, and would have allowed implementation of the rule. The prospect of the stay being lifted prompted the EPA to act and suspend the rule for two years.
Certain states and environmental groups have vowed to challenge the Trump administration’s actions to delay and ultimately replace 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.