Last week, the Center for Biological Diversity, Water Keeper Alliance, and a coalition of other organizations served a Notice of Intent to Sue the U.S. EPA and Army Corps of Engineers (the “Agencies”), alleging the Agencies’ delay in implementing the Obama-era Waters of the U.S. (“WOTUS”) Rule violated the Endangered Species Act.

As background, on February 6, 2018, the Agencies published in the Federal Register the so-called “Applicability Date Rule,” which formally postponed – until February 2020 – the date on which the WOTUS Rule would take effect.  See Definition of “Waters of the United States” – Addition of an Applicability Date to 2015 Clean Water Rule, 83 Fed. Reg. 5200.  The Trump administration had announced its intentions to abandon the WOTUS Rule and promulgate a new rule on the definition of “waters of the United States.”  The Applicability Date Rule aims to give the Agencies the time to complete that process.

The environmental groups’ Notice of Intent to Sue asserts the Applicability Date Rule violates Section 7 of the Endangered Species Act (“ESA”) because the agencies finalized the Rule without consulting with the Fish and Wildlife Service and the National Marine Fisheries Service to prepare a Biological Opinion. The Notice of Intent by the environmental groups is a prerequisite to formally sue the Agencies under the ESA.  If a suit were filed under the ESA, it would join other lawsuits lodged by a number of states and other organizations challenging the Applicability Date Rule on procedural and substantive grounds, including a case in the Southern District of New York and one in the District of South Carolina.