Several lawsuits have been filed across the United States following the U.S. Supreme Court’s January 22, 2018 decision in National Association of Manufacturers v. Department of Defense, 583 U.S. ___ (2018). The U.S. Supreme Court held that challenges to the Waters of the United States Rule (“WOTUS Rule” or “Clean Water Rule”) must be brought in federal district court. An in-depth analysis of the Supreme Court decision can be viewed here.

The WOTUS Rule is a 2015 regulation published by the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“USACE”) to clarify which waters are protected by the Clean Water Act. It was published in response to concerns about lack of clarity over the scope of the Clean Water Act. In October of 2015, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay on the implementation of the WOTUS Rule. The U.S. Supreme Court’s decision that the U.S. Courts of Appeals lacked jurisdiction over legal challenges to the WOTUS Rule resulted in the imminent lifting of the Sixth Circuit’s nationwide stay that has blocked the implementation of the Rule.

On February 6, 2018 the EPA and USACE finalized a rule adding an applicability date to the 2015 WOTUS Rule. This “applicability date” rule delays the application of the WOTUS Rule for two (2) years, or until February 6, 2020. The EPA and USACE are currently working through the process of repealing and replacing the WOTUS Rule, pursuant to an Executive Order issued by President Trump on February 28, 2017. The delay in applicability date would ensure the WOTUS Rule will not take effect while that process is ongoing.

On the same date the EPA issued the “applicability date” rule, several states filed suit against E. Scott Pruitt, as Administrator of the EPA; the EPA; Ryan Fisher, as acting Assistant Secretary of the Army for Civil Works; and the USACE (the “Agencies”), challenging the EPA’s “applicability date” rule and seeking the WOTUS Rule take immediate effect. The suit was brought by twelve (12) Attorneys General from the states of New York, California, Connecticut, Maryland, New Jersey, Oregon, Rhode Island, Vermont, and Washington, the Commonwealth of Massachusetts, and the District of Columbia (the “States”). The States, led by New York Attorney General Eric Schniederman, claim the Agencies violated required legal processes and ignored legal obligations to protect water supplies when they delayed the WOTUS Rule. The States claim “[t]he agencies have suspended the Clean Water Rule without consideration of the extensive scientific record that supported it or the environmental and public health consequences of doing so. . . . The agencies have undertaken this redefinition with inadequate public notice and opportunity for comment, insufficient record support, and outside their statutory authority, illegally suspending a rule that became effective more than two years ago.”

In response, on February 7, 2018 a coalition of agricultural and business groups, led by the American Farm Bureau Federation (“AFBF”), filed a request in the U.S. District Court for the Southern District of Texas for a nationwide preliminary injunction prohibiting the Agencies from enforcing, implementing, applying, or otherwise giving effect to the WOTUS Rule. The AFBF believe that were the WOTUS Rule to take effect, dry ditches, drains, and even low spots on farm fields will be considered “Waters of the United States” under the Rule. Notably, these areas are often completely free of water. The WOTUS Rule would give the government power over vast swaths of dry land.  This, they claim, would create legal risks for farmers, ranchers, property owners, and business. AFBF and the other plaintiffs claim that the EPA’s repeal and replace process will be subjected to legal challenges, and that a nationwide preliminary injunction keeping the WOTUS Rule from going into effect is imperative. These continued legal challenges create uncertainty for private land owners, who could face heavy civil and criminal penalties due to the continued jurisdictional issues around the WOTUS Rule.

These two (2) lawsuits have been filed in separate federal district courts within weeks of the U.S. Supreme Court’s decision. Additionally, several environmental organizations have filed suit against the Agencies in the U.S. District Court for the District of South Carolina, claiming the Agencies violated the Administrative Procedure Act. Other states, including Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, South Carolina, Utah, West Virginia, and Wisconsin have asked the U.S. Court of Appeals for the Eleventh Circuit to send their challenge of the WOTUS Rule back to district court so that they may request an injunction. It is likely that more suits will be filed, creating even more uncertainty around the future of the WOTUS Rule.

For more information about these lawsuits, or the WOTUS Rule, please do not hesitate to call on us at info@chaloslaw.com.