September 20, 2018 | Category: Land Use, Lawsuit, News, Water

The Waters of the United States Rule (“WOTUS Rule”) implemented under the Obama administration in 2015 has gone through much back and forth since the beginning. Numerous states and industry groups sued to stop implementation of the WOTUS Rule in 2015. The Sixth Circuit consolidated various challenges and issued a nationwide stay of the WOTUS Rule in October. In August 2015, a North Dakota federal district judge ruled to halt the implementation of the WOTUS Rule in 13 states. On January 22, 2018, the U.S. Supreme Court held that the courts of appeals do not have original jurisdiction to review challenges to the WOTUS Rule. The Supreme Court decision reversed the Sixth Circuit’s decision to stay the WOTUS Rule nationwide, but had no effect on any stays issued by the district courts. On June 8, 2018, a Georgia U.S. District Court enjoined the WOTUS Rule in 11 states.

After the Supreme Court decision, the U.S. EPA and U.S. Army Corps of Engineers adopted final rule 83 FR 5200-01 on February 6, 2018 to add an applicability date to the WOTUS Rule definitions. However, on August 16, 2018, a district court in South Carolina ruled that the agencies’ adoption of the Suspension Rule violated the Administrative Procedure Act. The court stated that a nationwide injunction was necessary to provide complete relief to the plaintiffs, and as a result, the court enjoined the Suspension Rule nationwide. After this decision, the WOTUS Rule was in effect in the 26 states not part of the North Dakota or Georgia district court decisions.

The U.S. District Court for the Southern District of Texas is currently considering legal challenges to the WOTUS Rule brought by farm industry groups and the states of Louisiana, Mississippi, and Texas. Additionally, on September 18, 2018, a federal judge in North Dakota granted Iowa Governor Kim Reynolds’ request to join in the federal lawsuit to block the WOTUS Rule in Iowa.

As of September 18, 2018, the WOTUS Rule is in effect in 25 states (including California), while 25 states remain subject to the district court decisions in North Dakota and Georgia staying the rule. With the potential suit in Texas, three more states may join the 25 with the stay, making a majority of the country not subject to the WOTUS Rule.