A group of states, including California and New York, asked a federal judge this week to invalidate the US EPA’s recent choice to delay implementing an Obama-era update to the Clean Water Rule, arguing that the agency failed to follow proper notice-and-comment protocol when delaying the rule’s application. The rule, to be implemented by EPA and the US Army Corps of Engineers, is currently suspended until at least 2020.

The delayed rule aims to clarify what qualifies as a “water of the United States” under the Clean Water Act, which is key in determining whether or not a project must obtain a federal permit. The rule would expand the current definition to encompass more waters, and President Trump and the EPA have made it a priority to instead rescind that rule and replace it with a narrower definition. The rule was supposed to have become effective in August of 2015, but was stayed by the Sixth Circuit.

The dispute over the new rule pits narrower versus more broad definitions of “waters of the US” against each other. Justice Scalia, writing for a 2006 Supreme Court plurality decision, sought to narrow the definition to “traditional,  navigable-in-fact waters, as well as relatively permanent, standing or flowing bodies of water forming geographic features…like oceans, rivers, and lakes.” Other justices disagreed that a water must have a continuous surface connection with a relatively permanent body of water, instead extending the definition of waters of the US to any that possess a “significant nexus” to waters that are or were navigable in fact. The new rule aimed to adopt a broader definition to include more types of water in the federal regulation scheme.

The case seeking to invalidate the delay of the rule is currently before a federal judge in New York, as States of New York et al. v. E. Scott Pruitt et al.

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