UPDATE: On July 3, the Sixth Circuit issued an order, requested by the U.S. Department of Justice (DOJ), that holds the Kentucky Chamber’s WOTUS appeal in abeyance. In other words, the appeal is now “on hold” while the EPA and the Army prepare to issue a new rule to amend the 2023 rule that the Kentucky Chamber and its coplaintiffs are challenging. The EPA and the Army state that they intend to issue a new rule by September 1, 2023. The Supreme Court repudiated the 2023 rule in its recent decision in Sackett v. EPA.
The existing injunction pending appeal preventing enforcement of the 2023 rule, which the court of appeals entered on May 10, should remain in place until a new WOTUS rule has taken effect. The injunction continues to protect our members against enforcement of the rule.
On May 10, 2023, the U.S. Court of Appeals for the Sixth Circuit granted our and our fellow plaintiffs’ motions for an injunction pending appeal of the new, unlawful Waters of the United States rule promulgated by EPA and the Army Corps of Engineers. The injunction bars enforcement of the WOTUS rule in Kentucky, and against the Kentucky Chamber and our fellow plaintiffs and our members anywhere, while the Sixth Circuit is considering the appeal. The rule originally took effect in March. It was put on hold after the Kentucky and U.S. Chambers of Commerce, our association coplaintiffs, and the Commonwealth of Kentucky’s Attorney General asked the court of appeals to immediately intervene following a contrary decision by the lower court.
The rule that has been stayed would subject landowners to crushing daily fines and the threat of imprisonment for violations. It creates needless confusion and risk for businesses of all sizes that must navigate the broken permitting process and build essential new infrastructure. The Chamber is represented by Kentucky Chamber member English, Lucas, Priest & Owsley, LLP in Bowling Green and by Hunton Andrews Kurth LLP in Washington, DC.