On January 31, EPA and the U.S. Army Corps of Engineers (USACE) finalized a rule, delaying for two years implementation of the 2015 Clean Water Rule (known as Waters of the United States or WOTUS). The rule, titled Definition of “Waters of the United States” – Addition of Applicability Date to 2015 Clean Water Rule, is intended to alleviate confusion after the U.S. Supreme Court ruling that determined the 12 Federal Circuit Courts of Appeals do not have jurisdiction to hear suits on WOTUS. The Clean Water Rule, which aims to define what waters fall under the jurisdiction of EPA and USACE, has been in litigation since it was finalized in 2015.
The U.S. Court of Appeals for the Sixth Circuit had issued a stay to delay implementation of WOTUS, which must now be lifted due to the Supreme Court ruling. However, the Sixth Circuit had not announced when the stay would be lifted. The federal government asked the court for 25 days, until February 16, before lifting the stay in hopes that the agency would be able to finalize the delay rule. The rule cleared White House Office of Management & Budget (OMB) on January 30 after being submitted only five days earlier. With the advent of this new rule, once the stay is lifted, implementation of the Obama WOTUS rule would still remain on hold. The Trump Administration is currently working on repealing and replacing the 2015 rule, but a draft proposal is not expected until May 2018
According to EPA’s news release, EPA Administrator Scott Pruitt stated, “The 2015 WOTUS rule developed by the Obama administration will not be applicable for the next two years, while we work through the process of providing long-term regulatory certainty across all 50 states about what waters are subject to federal regulation.”
The New York State Attorney General, Eric Schneiderman, announced February 1 that he would lead a multistate coalition that will sue to block the “reckless and illegal” delay. He said, “The Trump Administration’s suspension of the Clean Water Rule threatens to eliminate protections for millions of miles of streams and acres of wetlands across the country”. The suit was filed February 6 and included ten states and the District of Columbia. A group of nine environmental groups filed a similar suit against the delay the same day.