Supreme Court Sides w/NSSGA on WOTUS Rule

January 23 - Washington D.C. - The U.S. Supreme Court sided with NSSGA on an important challenge to the 2015 “Waters of the United States” Rule (WOTUS) rule. The court issued a unanimous opinion authored by Justice Sonia Sotomayor on the decision that challenges to WOTUS must be filed in federal district courts. NSSGA and a coalition of members have argued for this decision and this decision should be helpful in future Clean Water Act challenges as the Trump administration works to redo WOTUS.

However, this decision could cause the Environmental Protection Agency’s (EPA’s) controversial rule to become applicable in most of the U.S. because the 6th Circuit Court of Appeals is likely to lift its 2015 nationwide stay on the rule. Only the stay issued by the U.S. District Court for the District of North Dakota that covering the states of Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming would remain active. The EPA, likely anticipating this decision, proposed to delay the 2015 WOTUS rule applicability date to 2020 to provide ample time to finalize the withdrawal and replacement. NSSGA commented favorably on this proposal on Dec. 13, noting that the delay “will allow adequate time to withdraw the 2015 rule and to develop a new rule to provide certainty to regulators, operators and the general public, while protecting navigable waters and the rights of the states and landowners.”

Litigants are expected to request other district courts to stay the rule and this decision should not adversely impact aggregates operators, because the 2015 WOTUS rule would only be applicable for a short time, if at all.