In February 2018 the Supreme Court held that challenges to the Waters of the United States Clean Water Act 2015 jurisdictional rule issued by the Environmental Protection Agency (EPA) and the Army Corps of Engineers could be raised only in the US district courts. A number of legal challenges to the rule are pending in the district courts.

On February 22 2018 the Southern District of Texas was the first US district court to hear arguments on the plaintiffs' request for preliminary relief staying the rule. The Eleventh Circuit also issued an expedited mandate so that proceedings in the US District Court for the Southern District of Georgia could begin promptly. The EPA and the Army Corps of Engineers issued a stay of the rule's effective date until 2020, but environmental groups challenged that stay. Opponents to the rule therefore viewed judicial review of the rule as a backstop in case the stay was vacated. Environmental groups intervened to oppose an injunction, arguing that the stay imposed by the rule made it unnecessary, but also arguing in separate challenges filed in the Southern District of New York that the stay was invalid. A stay of the rule issued by the US District Court for North Dakota, covering 13 states, remains in effect.

For further information on this topic please contact Samuel B Boxerman or Jim Wedeking at Sidley Austin LLP by telephone (+1 202 736 8000) or email (sboxerman@sidley.com or jwedeking@sidley.com). The Sidley Austin LLP website can be accessed at www.sidley.com.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.