The U.S. Supreme Court on Jan. 13 announced it will resolve a dispute over what court should hear the legal challenges to the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers’ controversial 2015 rule that redefines the term “Waters of the United States” in the Federal Code of Regulations. The WOTUS rule determines what waters and wet areas are subject to federal control, water quality limits, permitting, enforcement and other reviews under the Clean Water Act. States, industry, environmental advocates and others criticized the 2015 WOTUS rule in a host of district courts and courts of appeals.
This case will center around a provision of the Clean Water Act that specifies that certain types of government actions must go directly to federal courts of appeals, while others must go to federal district courts. In February 2016, the U.S. Court of Appeals for the Sixth Circuit ruled that it is the appropriate court to review the legality of the 2015 WOTUS rule. The Sixth Circuit also stayed the rule nationwide, pending the outcome of litigation.
UPDATE: On Jan. 25, the Sixth Circuit granted a motion to put a hold on the litigation over the WOTUS rule until the U.S. Supreme Court can decide whether the appeals court is the correct venue to hear the initial challenges to the regulation.
The Supreme Court will say once and for all where challenges to the WOTUS rule should be heard. The Court, however, will not resolve anything concerning the merits of the rule. When and how the ultimate case against the WOTUS rule will end remains uncertain.
With litigation underway, the Corps is not implementing the 2015 WOTUS rule. Instead, the Corps continues to use the 1986 regulations and applicable jurisdictional guidance (status quo as it existed before the new rule) in making jurisdictional determinations or taking other actions based on the definition of WOTUS.
AGC will continue to monitor this situation and work closely with its industry allies. AGC remains engaged on Capitol Hill, within the regulatory agencies, and with the Trump transition team to address members’ concerns with the WOTUS rule. We will share additional information as it becomes available.