Supreme Court Issues WOTUS Decision

On January 22, the Supreme Court issued a unanimous opinion, authored by Justice Sotomayor, finding that challenges to the Waters of the U.S. (WOTUS) rule belong in district court. The Court found that the WOTUS rule wasn’t covered under the Clean Water Act, which lists categories of EPA actions that circuit courts have exclusive power to review.  The Supreme Court instructs the Sixth Circuit to dismiss the petitions for review of the WOTUS Rule for lack of jurisdiction.
As a result, the Sixth Circuit’s nationwide stay of the WOTUS Rule may no longer remain in place.  NAR is trying to obtain more clarity on this important question from the EPA but for now, the focus will shift to the district courts to obtain a nationwide stay of the rule.  In the meantime, the agencies are still working on a rule to delay the applicability date of the 2015 WOTUS Rule which NAR, through the Waters Advocacy Coalition, provided comments for the official record. The EPA will also continue to develop a rule to repeal and replace the WOTUS regulation.
By: Ken Wingert & Russell Riggs (NAR)
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