On January 22, 2018, the U.S. Supreme Court issued a ruling that legal challenges to the 2015 Waters of the United States (WOTUS) rule belong in the district rather than appellate courts. In short, this Supreme Court decision will result in lifting an appellate court’s nationwide stay of the 2015 WOTUS rule that has been in effect since Oct. 2015. The definition of WOTUS dictates the scope of the federal government’s control and Clean Water Act permitting authority over construction work in water and wet areas. Whereas this ruling may be a victory for industry in the long term, the timing of the decision is unfortunate as the Administration is still working to repeal and replace the 2015 WOTUS rule. In the short term, we anticipate confusion as the process plays out.
What we can say now is that implementation and enforcement of the 2015 rule appears imminent in most states. However, we are waiting for word on when the appellate court will officially lift its nationwide hold on the rule, and until that time nothing is changed. (Read more in AGC’s “frequently asked questions” document.)
Irrespective of when the appellate court lifts its hold, thirteen states will remain shielded from the 2015 WOTUS rule in the short term. As lawsuits that were filed in district courts start moving forward again, implementation of the 2015 WOTUS rule will remain under injunction in thirteen states that are parties in a case before the U.S. District Court for the District of North Dakota (until that court lifts its injunction). Those states are: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.
The administration is expected shortly to finalize a rule that would delay the implementation date of the 2015 WOTUS rule by two years, i.e., until 2020. It is not certain whether the administration will finalize that rule in time to forestall implementation once the appellate court’s nationwide stay is lifted. The proposed rule is intended to prevent the confusion over implementation that industry currently faces and to allow the agencies more time to finalize its repeal and replace efforts.
AGC has prepared a “frequently asked questions” document about the status of the nationwide stay, the Trump Administration’s efforts to repeal and replace the 2015 WOTUS rule, and where to find information on that rule. This is a developing issue and AGC will continue to add to the document as more information is available and/or conditions change.