Ch. 6: Water Pollution Control


As the casebook notes (p. 695), in the wake of conflicting lower court rulings, the Supreme Court agreed to decide whether challenges to the Obama administration’s “waters of the U.S.” (WOTUS) rule, should be brought first in the U.S. Courts of Appeal or federal district courts. The WOTUS rule sought to bring much-needed clarity to the reach of federal jurisdiction under the Clean Water Act in the aftermath of the Court’s 4-1-4 split in Rapanos v. U.S., 547 U.S. 715 (2006).  After the WOTUS rule, which was jointly promulgated by EPA and the U.S. Army Corps of Engineers, became final in 2015, 80 Fed. Reg. 37054, lawsuits challenging the rule were filed in several federal district courts and U.S. Courts of Appeals.  The challenges filed in the U.S. Courts of Appeal were consolidated in the Sixth Circuit.  While expressing some doubts concerning whether it was the proper venue for filing initial challenges to the rule, a panel of the Sixth Circuit refused to dismiss the case for lack of jurisdiction and issued a nationwide stay of the WOTUS rule.  In re Dept. of Defense, 817 F.3d 261 (6th Cir. 2016).

A week before President Trump took office, the Supreme Court agreed to review the Sixth Circuit’s decision at the behest of petitioner National Association of Manufacturers.  Shortly thereafter President Trump issued an executive order directing EPA and the Corps to consider revising or rescinding the WOTUS rule.  Exec. Order 13778, 82 Fed. Reg. 12497 (2017).  The government then asked the Court to put the case on hold pending its reconsideration of the WOTUS rule.  On April 3, 2017, the Supreme Court denied this motion.

On January 22, 2018 the Supreme Court reversed the Sixth Circuit and decided that proper venue for challenges to the “waters of the U.S.” rule lies in the federal district courts and not the U.S. Courts of Appeal. National Association of Manufacturers v. Department of Defense, 138 S.Ct. 617 (2018). Justice Sotomayor wrote the opinion for a unanimous Court. The Court held that the plain language of the judicial review and venue provisions in § 509(b) of the Clean Water Act, 33 U.S.C. §1369(b), does not provide for the filing of initial petitions for review in the Courts of Appeal because the rule was not among the categories of actions for which the statute specified such venue. An excerpt from this decision is included in the casebook’s 2018-19 Statutory and Case Supplement, which was published in July 2018.

Prior to the Supreme Court’s decision in National Association of Manufacturers v. Department of Defense, 2018 WL 491526 (2018), thirteen states had challenged the WOTUS rule in federal district court in North Dakota.  That court in 2015 issued a stay of the rule in the states that had challenged it (North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, South Dakota, and Wyoming).  North Dakota v. EPA, 127 F. Supp. 3d 1047 (N.D. 2015).  Now that the Supreme Court has ruled that legal challenges to the WOTUS rule initially must be brought in federal district courts, additional litigation has commenced in federal district courts in Georgia, New York, Texas and South Carolina.  On June 12, 2018 a federal district court in the Southern District of Georgia issued an injunction staying the rule in 11 states (Georgia, Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, Utah, West Virginia, Wisconsin and Kentucky).

Faced with the dissolution of the Sixth Circuit’s nationwide injunction staying the WOTUS rule, EPA on February 6, 2018, extended the effective date of the rule to February 6, 2020.  EPA states that this will give it time to revise or rescind the rule before it takes effect. On August 16, 2018 a federal district court in South Carolina held this extension violated the Administrative Procedure Act because EPA had not solicited public comment on it.  South Carolina Coastal Conservation League v. Wheeler, No. 2-18-cv-330-DCN (D.S.C. 2018).  This decision effectively reinstates the WOTUS rule in the 26 states in which it has not been enjoined.

The Trump administration is trying to repeal the WOTUS rule, but that would only return regulation to the mass confusion that prevailed in the wake of the Rapanos decision.  Ultimately EPA and the Army Corps of Engineers hope to issue a new regulation that will significantly reduce the scope of federal jurisdiction by adhering to Justice Scalia’s narrow interpretation that commanded only four votes in Rapanos.