Supreme Court sides with NSSGA on challenge to WOTUS

Kerry Clines

January 24, 2018

The National Stone, Sand & Gravel Association (NSSGA) reports that the U.S. Supreme Court issued a unanimous opinion authored by Justice Sonia Sotomayor that challenges to the Environmental Protection Agency’s (EPA) 2015 Waters of the United States (WOTUS) must be filed in federal district courts. The NSSGA and a coalition of members have argued for this decision, which should be helpful with future Clean Water Act challenges as the Trump administration works to redo WOTUS.

However, this could cause the rule to become applicable in most of the U.S., because the 6th Circuit Court of Appeals will likely lift its nationwide stay on the rule. Only the stay issued by the U.S. District Court for the District of North Dakota that covers 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 proposed to delay the 2015 WOTUS rule applicability date to 2020 to provide ample time to finalize the withdrawal and replacement.

On Dec. 13, 2017, the NSSGA noted 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.” 

It is expected that litigants will request other district courts to stay the rule. This decision is not expected to adversely impact aggregates operators, because the 2015 WOTUS rule would only be applicable for a short time, if at all.

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