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Multistate Lawsuit Planned Over Two-Year Delay of Clean Water Rule

After the U.S. Supreme Court late last month ruled that the nation's district court system should decide legal challenges to an Obama-era rule over which waterbodies deserve federal protection, the Environmental Protection Agency (EPA) and Army Corps of Engineers on Wednesday finalized a two-year delay for the rule to take effect.

The EPA and the Army Corps, which jointly promulgated the Clean Water Rule (CWR) in 2015, said the applicability date for the rule would be two years after its publication in the Federal Register. In the meantime, the agencies said they would continue the process of reconsidering the rule, which defines what constitutes Waters of the United States (WOTUS) and therefore protection under the Clean Water Act.

EPA “is taking action to reduce confusion and provide certainty to America's farmers and ranchers," said EPA Administrator Scott Pruitt. "The 2015 WOTUS rule developed by the Obama administration will not be applicable for the next two years, while we work through the process of providing long-term regulatory certainty across all 50 states about what waters are subject to federal regulation."

The Supreme Court ruled unanimously on Jan. 22 that district courts, not the appellate court system, should decide legal challenges to the CWR. Days later, the EPA said it had anticipated the high court's ruling and vowed to complete a stay of the rule before it took effect.

Last July, the EPA said it was moving forward with a two-step process to rescind the CWR. That process called for initiating a public rulemaking to rescind the CWR and revert to laws governing water protection that were first enacted in 1986. The agency and the Army Corps would then promulgate a revised definition of WOTUS. The Sixth District Court in Cincinnati issued a stay and blocked it from being implemented in October 2015.

In response to EPA and the Army Corp decision, New York Attorney General (AG) Eric Schneiderman said he would lead a multistate lawsuit against the Trump administration over the delay. Environmental groups also hinted that they would sue.

The AG called the CWR "a common sense application of the law and the best science to protect our waters. The Trump administration's suspension of these vital protections is reckless and illegal."

Earthjustice attorney Janette Brimmer said the Trump administration "is playing politics with our drinking water. By attempting to delay the CWR, the [EPA] is one step closer to repealing the rule altogether...This delay is an obvious attempt to make it easier for corporate interests to pollute our waterways."

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