As expected, the ink in the Federal Register reflecting the delayed implementation date of the Clean Water Rule was hardly dry before the first lawsuit was filed against the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers for delaying the rule.
The agencies announced publication of the final document delaying the implementation date of the Clean Water Rule, which is also referred to as the Waters of the U.S., or WOTUS, rule, in the Federal Register on Feb. 6. The Clean Water Rule does not impose specific regulatory requirements but rather defines the waters of the U.S. that are subject to federal regulation.
Publication of the document meant that parties could sue over the delay. Wasting no time, the same day New York Attorney General Eric Schneiderman led a group of 11 states that filed a lawsuit with the U.S. District Court for the Southern District of New York. The attorneys general of California, Connecticut, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, Washington and the District of Columbia joined Schneiderman in the litigation.
The lawsuit will further tangle a complex web of litigation centered on the WOTUS rule that is playing out in federal district courts, federal appeals courts and even the U.S. Supreme Court. The high court in January ruled that litigation over the rule belonged in federal district courts and not federal appeals courts. The seemingly small change meant that the U.S. Court of Appeals for the 6th Circuit would be required to lift a nationwide stay of the rule.
The Trump administration has moved to repeal and replace the Clean Water Rule, with a proposed definition expected in April. But with the stay set to be lifted, the original 2015 version of the rule would go into effect nationwide. The EPA and Army Corps therefore moved to finalize a two-year delay of the original rule's implementation date to buy time to complete the new definition.
In their Feb. 6 complaint, the states argued that suspending the 2015 rule and returning to a previous definition of waters of the U.S. in the meantime represents a "wholesale, substantive redefinition" under the Clean Water Act. They asserted that the agencies implemented the redefinition without proper notice to the public and opportunity for comment and did not provide sufficient evidence to support the change.
