The saga of the Clean Water Rule continues. The rule, also known as the Waters of the United States (WOTUS) Rule, was widely criticized for expanding jurisdiction over tributaries and wetlands. Opponents fought the rule in multiple courts across the country with success, but after the Supreme Court stepped into the fray, opponents were on the brink of having the rule become effective in most areas of the country.
The rule provides a regulatory definition of the term "waters of the United States." Among other things, the definition is utilized by the EPA and the Army Corps of Engineers to determine the jurisdictional reach of the Clean Water Act (CWA) for permitting under CWA Section 404. The rule was originally slated to become effective Aug. 28, 2015.
After the rule was issued, there were numerous challenges in numerous federal district courts around the country. These cases were not consolidated in any single court. Some courts dismissed the challenges, finding that the courts of appeal had jurisdiction. Other district courts ruled they did have jurisdiction. Of particular note, one district court in North Dakota ruled that it did have jurisdiction, issuing an injunction and staying the implementation of the rule, but only in the 13 states that were parties to the litigation.
In addition to the challenges in federal district courts, there were also numerous challenges in various courts of appeal. These appellate challenges were ultimately consolidated in the Sixth Circuit Court of Appeals, which issued a nationwide stay of the rule. It also issued a ruling stating it had jurisdiction under the CWA to address the substantive challenges to the rule.
The latter ruling went up to the Supreme Court. On Jan. 22, the Supreme Court issued its unanimous ruling in National Association of Manufacturers v. DOD (Department of Defense). In short, the court found that federal district courts, not the courts of appeal, are the proper courts to hear challenges to the rule.
The ruling created uncertainty, and perhaps panic, for opponents of the rule. While it was clear that the Sixth Circuit and other courts of appeal did not have jurisdiction to hear challenges to the rule, the issue of which federal district court or courts would hear challenges remained. Would the challenges be consolidated into one district court, or would there be multiple challenges in multiple district courts?
Additionally, and perhaps most importantly, the fate of the nationwide stay of the rule issued by the Sixth Circuit was in doubt. As the Sixth Circuit had no jurisdiction, the nationwide stay would end once the Sixth Circuit case was dismissed. Once dismissed, the only stay in effect was the 13-state stay issued by the district court in North Dakota. Unless the stay was broadened by that court or another district court issued a nationwide stay, the rule was "on the books" (as the Supreme Court noted) and would go into effect outside of the 13-state area. Obviously, the possibility of the rule going into effect concerned many around the country.
EPA to the rescue! Previously, EPA proposed to add an applicability date for the rule as "two years from the date of final action on this proposal." Once the Supreme Court issued its ruling, EPA rushed the applicability date rule to finalization. It was published Feb. 6, meaning that the rule will become effective Feb. 6, 2020. By then, though, EPA hopes to have its revision or repeal of the rule in place.
As of now, the rule is not effective until 2020. There will likely be several more twists and turns for the rule, but at least there is some certainty until the next chapter of this saga is written.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting and compliance. Prior to joining the firm in 2003, he served as chief attorney for enforcement for the Louisiana Department of Environmental Quality.
For more information, visit www. bswenviroblog.com or contact John B. King at jbk@bswllp.com or (225) 381-8014.