Five months ago, a federal appeals court issued a nationwide stay of the Clean Water Rule (commonly referred to as the Waters of the U.S or WOTUS rule). The stay will be maintained while the legal battles surrounding it are reviewed by the country’s courts. But, the buzz about this controversial rule didn’t stop there.

Below we’ve outlined the milestones that lead up to the stay and the legislative struggle that has followed.

  1. May 27, 2015: The Environmental Protection Agency (EPA) and U.S Army Corps of Engineers (USACE) issue final Clean Water Rule, promising that the rule will “[ensure] that waters protected under the Clean Water Act are more precisely defined and predictably determined, making permitting less costly, easier, and faster for businesses and industry.” The rule is expected to go into effect August 28, 2015.
  2. June 29, 2015: The final rule is published in the Federal Register, and lawsuits are immediately filed by multiple states’ attorneys attempting to block the rule. By June 30, 27 states have filed four separate lawsuits to challenge the rule in court.
  3. October 9, 2015: In response to one of these lawsuits, the U.S. Sixth Circuit Court issues nationwide stay of rule, which temporarily blocks implementation of the rule while legal challenges proceed. “A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing,” Judge David McKeague and Judge Richard Griffin write in the court’s opinion.
  4. November 4, 2015: U.S. Senate passes a joint resolution (S.J. Res. 22) to try to block the WOTUS rule (53-44 votes in favor of resolution). The resolution orders EPA and USACE to withdraw the rule and prevents the agencies from issuing similar rules in the future. A step toward dismantling the WOTUS rule, this resolution can achieve nothing until it is passed by the House and signed by the President.
  5. January 13, 2016: U.S. House of Representatives also votes to pass S.J. Res. 22 (253-166 votes in favor of resolution). If the President signs the resolution, it will be adopted.
  6. January 20, 2016: President Obama vetoes S.J. Res. 22, stating, “Because this resolution seeks to block the progress represented by this rule and deny businesses and communities the regulatory certainty and clarity needed to invest in projects that rely on clean water, I cannot support it.”
  7. January 21, 2016: Senate Republicans attempt to override the President’s veto, but are unable to gather the required 60 votes in favor of the override (52 votes were cast in favor of the override).

What now? Enforcement is on hold indefinitely while the lawsuits play out, so jurisdiction, rules, and permitting processes regarding wetlands and other waters remain the same as they were prior to May 27, 2015.

As everyone knows, litigation of this magnitude can take years, but the outcome of this case will have important ramifications for environmental rule-making and federal authority.

For now, we wait.

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About the author

Elizabeth High
Elizabeth High
Liz is as an environmental specialist and Geographic Information System (GIS) analyst in the San Antonio office. She has over six years of experience in environmental compliance consulting and permitting with an emphasis on GIS and spatial analysis.