On August 16, 2018, a judge in the US District Court for the District of South Carolina issued an injunction on EPA’s extension of the effective date (the February 6, 2018 Suspension Rule) of the 2015 Waters of the United States (WOTUS) rule. The injunction allows the rule to become effective in 26 states immediately.
The WOTUS rule was adopted in 2015 to help clarify what types of waters constitute “waters of the United States” covered by the Clean Water Act, an issue that has been embroiled in decades of litigation. In February 2016 the Sixth Circuit stayed the WOTUS Rule. On January 22, 2018, the United States Supreme Court ruled that the circuit courts did not have original jurisdiction to review the rule and that challenges must be filed in the district courts. The Sixth Circuit then vacated the nationwide stay of the WOTUS rule. In response, on February 6, 2018, the EPA issued the Suspension Rule that delayed the effective date of the WOTUS Rule to 2020 and stated that in the interim period the controlling interpretation of “waters of the United States” was the rule prescribed by the 1980s regulation.
In this case, the plaintiffs, multiple environmental organizations, challenged that the Suspension Rule violated the Federal Administrative Procedure Act (APA). The court sided with the plaintiffs, finding that EPA failed to issue proper notice and allow for the required comment period in promulgating the Suspension Rule. As a result, the WOTUS rule is now effective in the following 26 states: California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia and Washington. However, there are existing injunctions applying to 24 other states that have continued to suspend the WOTUS rule.