The U.S. Supreme Court ruled on January 22 that the 12 Federal Circuit Courts of Appeals do not have jurisdiction to hear suits on EPA’s Waters of the United States (WOTUS) rule, which defines what waters fall under the jurisdiction of EPA and U.S. Army Corps of Engineers. This ruling did not look at the merits of WOTUS itself, only at which courts have jurisdiction to hear WOTUS cases.
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 has not announced when the stay will be lifted. The federal government is asking the court for 25 days, until February 16, before lifting the stay in hopes that EPA can finalize a proposed ruling moving the effective date of WOTUS from 2015 to 2020.
If the rule cannot be finalized in time, multiple suits in the lower courts will all resume and could result in different WOTUS rulings in each court. These suits were originally consolidated at the higher courts in hope of avoiding this complicated outcome, so the new Supreme Court ruling brings more uncertainty to an already intricate issue.
The Trump Administration is currently working on repealing and replacing the 2015 rule, which was proposed and finalized under President Obama, but a draft proposal is not expected until May 2018.