Injecting yet more confusion into the ongoing saga of the Waters of the United States (“WOTUS”) Rule, on August 16, 2018, the United States District Court for the District of South Carolina enjoined the WOTUS “Suspension Rule,” which would have delayed the effective date of the Obama-era WOTUS Rule until February 6, 2020. As a result of this ruling, the WOTUS Rule is immediately effective in the 26 states where the Rule has not previously been enjoined by other federal courts. The practical effect of the South Carolina District Court’s ruling is that approximately half of the states are now subject to the WOTUS Rule, while the rest are not.

The Court’s decision adds further confusion to an already controversial and difficult regulatory regime. At the present time, the definition of waters of the United States depends on the state in which a proposed project is located. But this could change as the Trump Administration and a group of industry organizations have appealed the Court’s decision and asked that the decision be stayed pending the appeal. Additionally, based on the confusion created by the South Carolina Court’s decision, the States of Louisiana, Mississippi, and Texas have filed a motion for a nationwide preliminary injunction against the WOTUS Rule.