In a unanimous decision issued on January 22, 2018, the Supreme Court held that challenges to the WOTUS Rule must be reviewed first in federal district court, reversing the Sixth Circuit’s ruling with instructions to dismiss for lack of jurisdiction. The Supreme Court’s decision results in a lift of the national stay of the WOTUS Rule ordered by the Sixth Circuit, which could make the Rule’s provisions enforceable, at least until another court issues a national stay of the Rule.

In 2015, the EPA and Army Corps of Engineers proffered a definition of the term “waters of the United States” as used in the Clean Water Act (the “WOTUS Rule” or the “Rule”) in an effort to clarify which wetlands and streams receive automatic protection under the Clean Water Act (“CWA”). Dozens of parties challenged the WOTUS Rule in federal district and appeals courts around the country. The circuit court actions were consolidated and transferred to the Court of Appeals for the Sixth Circuit, while parallel actions in the district courts continued. The National Association of Manufacturers intervened as a respondent in the Sixth Circuit and moved to dismiss for lack of jurisdiction. The Government opposed the motion, arguing that federal courts of appeals had direct and exclusive jurisdiction to review challenges to the WOTUS Rule. The Supreme Court’s decision yesterday did not deal with the substantive challenges to the WOTUS Rule, but instead with the procedural issue of which federal court these challenges must be filed in.

Generally, parties may file challenges to final EPA actions in federal district court. But the CWA, 33 U.S.C. § 1369(b)(1)(A) through (G), provides for seven categories of EPA actions for which the federal courts of appeals have direct and exclusive jurisdiction. The Government under the Obama administration and subsequently the Trump administration argued that the WOTUS Rule fit within two of these categories: Subparagraph (E), EPA actions in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of the CWA and Subparagraph (F), EPA actions in issuing or denying any permit under section 1342 of the CWA.

The Supreme Court rejected both of these arguments. As to Subparagraph (E), the Court held that the WOTUS Rule is not an “effluent limitation” or “other limitation” promulgated or approved under § 1311 of the CWA. An “effluent limitation,” as defined by the CWA, is “any restriction…on quantities, rates, and concentrations” of federal pollutants “which are discharged from point sources into navigable waters.” § 1362(11). The Court did not find the WOTUS Rule to fit within this definition. Nor did the Court find the WOTUS Rule to fit within Subparagraph (E)’s “other limitation” language, which suggests that an “other limitation” must be similar in kind to an “effluent limitation,” i.e., a limitation related to the discharge of pollutants. Additionally, the WOTUS Rule was promulgated under § 1361(a) of the CWA and not under § 1311. As for Subparagraph (F), the Court rejected the Government’s argument that the WOTUS Rule was “functionally similar” to issuing or denying a permit, and also rejected the Government’s policy arguments in favor of review by the federal courts of appeals. Because the WOTUS Rule did not fall under any of the seven CWA categories for direct appellate review, challenges to the Rule must first be filed in federal district court.

The full effect of the Court’s decision on the Trump administration’s attempt to repeal and replace the rule with a version covering fewer bodies of water remains to be told. In February 2017, President Trump issued an Executive Order directing the agencies to propose a rule rescinding or revising the WOTUS Rule (Exec. Order No. 13778). On July 27, 2017, the agencies responded by issuing a proposed rule which, once implemented, would rescind the WOTUS Rule and recodify the pre-2015 definition. Then in November 2017, the agencies issued a second proposed rule establishing a new effective date for the WOTUS Rule two years from the date of final action on the agencies’ proposal. This second proposed rule does not purport to rescind the WOTUS Rule, but simply delays the Rule’s effective date. Meanwhile, a case challenging the WOTUS Rule remains pending in the U.S. District Court for the District of Minnesota. Prior decisions by the U.S. District Court for the District of Minnesota, District of North Dakota, and District of Arizona dismissing WOTUS challenges in light of the Sixth Circuit’s decision are expected to be appealed.

For more information on the  WOTUS Rule, please contact Steve O’Day or Vickie Rusek.