On May 1, 2018, a federal judge for the U.S. District Court for the District of North Dakota affirmed a Magistrate’s decision to lift the stay on a group of 13 States’ lawsuit challenging U.S EPA’s the Army Corps’ 2015 rule defining “waters of the United States” (“WOTUS”) under the Clean Water Act.  The Court stayed the case in May 2016 in light of the Sixth Circuit’s decision that exclusive jurisdiction to review the 2015 WOTUS Rule rests in the courts of appeal under the Clean Water Act’s judicial review provision.  However, the U.S. Supreme Court reversed the Sixth Circuit’s decision on January 22, 2018, and ordered all lawsuits challenging the WOTUS Rule be filed in the federal District Courts.

Following the Supreme Court’s directive, a Magistrate Judge granted a motion filed by 7 of the 13 states to the lift the Court’s stay of the proceedings.  U.S. EPA and the Army Corps challenged the Magistrate’s decision, but the Chief Judge for the Court affirmed the Magistrate’s decision.  The Chief Judge noted that “it is especially telling that the Supreme Court rejected a stay of proceeding based upon the prospect of additional rulemaking . . . [and] such a possibility does not insulate the Defendants from challenges to the original rule while the original rule remains in place.”