As anticipated, the 6th Circuit Court of Appeals took the formal action of vacating its temporary injunction which had enjoined the enforcement of the Obama-era rule which redefined Waters of the United States (WOTUS) nationwide since 2015. The Court’s action was consistent with the United States Supreme Court’s ruling on January 22, 2018, that the 6th Circuit did not have jurisdiction to hear challenges to the validity of the rule.
In anticipation of the vacating of the injunction, the Environmental Protection Agency (EPA) and Army Corps of Engineers (Army Corps) on February 6, 2018 published a new rule titled “Definition of 'Waters of the United States'—Addition of an Applicability Date to 2015 Clean Water Rule” in the Federal Register which pushes back the applicability of the Obama-era WOTUS rule to February 6, 2020. The assumption is that this will allow sufficient time for the administration to develop a further modified WOTUS rule.
It should be assumed, though, that this new rule will also be challenged by groups favoring the implementation of the Obama-era WOTUS rule which greatly increased the breadth of the term “Waters of the United States.”
All these actions are occurring while both EPA and the Army Corps are pursuing a two-step approach to address the issue of WOTUS. Step one would result in the repeal of the Obama-era WOTUS rule. Public comment with regard to the repeal was concluded in September 2017 and is now awaiting final agency action. Step two would include the development of a new WOTUS rule. Again, one can anticipate all these final agency actions will be subject to continued challenge, thus resulting in continued uncertainty with regard to the definition of WOTUS.