On June 11, 2018, the U.S. District Court of the Southern District of Georgia issued a preliminary injunction preventing implementation of the U.S. Environmental Protection Agency’s 2015 Waters of the United States (WOTUS) rule in 11 states including Georgia, Alabama, Florida, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah, West Virginia and Wisconsin. The court held that if the WOTUS rule became effective the states would suffer irreparable harm in both a “loss of sovereignty and unrecoverable monetary losses.”
EPA issued the WOTUS rule in 2015 focusing on which streams and other bodies of water are subject to federal jurisdiction pursuant to the Clean Water Act. The 2015 Rule had an effective date of August 28, 2015.
The U.S. Court of Appeals for the Sixth Circuit subsequently issued a nationwide stay halting implementation of the rule. But the U.S. Supreme Court determined that the U.S. Courts of Appeals do not have original jurisdiction to review these types of challenges and, therefore, the Sixth Circuit lacked authority to issue a stay. Thus, the issues were thrown back into the laps of several U.S. District Court judges dealing with multiple cases challenging the rule which were filed throughout the country.
In light of the multiple lawsuits challenging the rule, the Trump administration has since proposed an extension of the effective date of the rule until sometime in 2019.
For a comprehensive review of the history and current status of the WOTUS rule and related court challenges, here is a link to the American Bar Association’s webpage:
https://www.americanbar.org/groups/environment_energy_resources/resources/wotus/wotus-rule.html
This post was drafted by John Watson, an attorney in the Denver, CO office of Spencer Fane LLP. For more information, visit spencerfane.com.