Clean Water Act’s WOTUS Rule: Summary and Updates

April 18, 2016

In June 2015, the U.S. Environmental Protection Agency and the Army Corps of Engineers published a final rule, the “Clean Water Rule: Definitions of ‘Waters of the United States,’” defining the term “waters of the United States” as it is used in the Clean Water Act (WOTUS rule). Since that time, the rule has been the subject of several lawsuits from states and industry stakeholders concerned that the new definition expands the federal government’s authority to regulate private property under the Clean Water Act.

Before the merits of the rule can be challenged before a court, however, the issue of where the rule can be challenged must be resolved. Below, we provide a timeline of the court orders and appeals likely to unfold this year that will shape where and when arguments regarding the rule’s validity are heard.

District Court Litigation – General

July 28, 2015: The Judicial Panel on Multidistrict Litigation issues an order consolidating petitions challenging the WOTUS rule and transferring all petitions to the Sixth Circuit.

August 26, 2015: The District Court for the Northern District of West Virginia, in Murray Energy Corp v. EPA, holds that jurisdiction over the WOTUS petitions for review lies in the Sixth Circuit.

August 27, 2015: The District Court for the Southern District of Georgia, in Georgia v. McCarthy, holds that jurisdiction over the WOTUS rule lies with the Sixth Circuit.

District of North Dakota:

August 27, 2015: Chief Judge Ralph Erickson issues an order finding jurisdiction over the WOTUS rule is properly before the District Court, and granting a preliminary injunction enjoining the the rule.

March 3, 2016: Federal defendants file a motion to dismiss based on the Sixth Circuit’s February 22 decision that jurisdiction over the WOTUS rule properly rests in the Circuit Court. In the petition, the agencies argue that the Sixth Circuit’s decision on subject-matter jurisdiction is controlling because it was issued pursuant to an order of the Judicial Panel for Multidistrict Litigation and reflects the intent of Congress in 28 U.S.C. § 2112(a) that judicial review of certain federal agency actions be consolidated and applicable across circuits, stating that “little purpose would be served by consolidation if the judgment reached by the designated circuit were not nationally applicable.”

Sixth Circuit

February 22, 2016: In In re: Environmental Protection Agency and Department of Defense Final Rule: Clean Water Rule, a three-judge panel in the Sixth Circuit holds that the Sixth Circuit has jurisdiction over the petition for review of the Clean Water Rule. The 1-1-1 ruling highlights the judges’ differences on the question of jurisdiction. Ultimately, two of the three judges find that section 509(b)(1)(F) of the Clean Water Act, (which directs review of the administrator’s “issuing or denying any permit”) when read in light of Sixth Circuit precedent in National Cotton Council of America v. EPA, 553 F.3d 927, allows for challenges to a definitional rule affecting permitting requirements to be heard before Circuit Courts.

February 29, 2016; March 23, 2016: Petitions for rehearing en banc are filed by various industry groups asking the court to overturn existing Sixth Circuit precedent in National Cotton, pointing to conflicts between the Sixth Circuit’s decision in In re EPA and the Supreme Court’s decision in E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112 (1977). Notably, parties based in Georgia focused on the direct conflict with Eleventh Circuit precedent in Friends of the Everglades v. EPA, 699 F.3d. 1280 and the fact that the Eleventh Circuit had stayed similar issues in order to await the Sixth Circuit’s ruling as to jurisdiction.

April 1, 2016: Petitioners U.S. EPA and U.S. Army Corps of Engineers file their opposition to petitions for rehearing en banc, arguing that the Sixth Circuit’s grant of jurisdiction is a correct reading of National Cotton and the principles stated by the Supreme Court in E.I. du Pont. The federal petitioners also argue that by clarifying a key definition in the Clean Water Act that is used in permitting decisions, the WOTUS rule should rightfully be considered within the scope of enumerated actions subject to original jurisdiction in the Circuit Courts pursuant to section 509(b)(1) of the Clean Water Act.

Eleventh Circuit

February 18, 2016: U.S. Court of Appeals for the Eleventh Circuit issues an order staying State of Georgia v. United States Environmental Protection Agency, pending a decision by the Sixth Circuit Court of Appeals on the consolidated litigation.

February 23, 2016: The state of Georgia requests that the Eleventh Circuit renew its review of State of Georgia v. U.S. EPA, arguing that the Sixth Circuit’s decision granting jurisdiction was based on Sixth Circuit precedent established in National Cotton Council of America v. EPA, 553 F.3d 927 (6th Ci. 2009), that runs counter to existing Eleventh Circuit precedent established in Friends of the Everglades v. EPA, 699 F.3d. 1280.

As the various cases stand today, it remains to be seen: (1) whether the Sixth Circuit will grant the petitions for rehearing en banc and put the jurisdictional question of In re: EPA before a full panel; (2) whether the Eleventh Circuit will continue its stay of the proceedings in light of conflict between the Sixth Circuit’s decisions in National Cotton and In re: EPA and the Eleventh Circuit’s decision in Friends of the Everglades; and (3) whether the District Court for the Northern District of North Dakota will grant federal defendants’ motion to dismiss in light of the Sixth Circuit’s ruling that jurisdiction over the rule is properly before the Circuit Court. As these rulings develop, we will continue to provide updates on the courts where decisions regarding the validity of the WOTUS rule are likely to eventually play out.