Supreme Court says WOTUS challenges must go through district courts

The U.S. Supreme Court on Jan. 22 issued a unanimous decision in which the high court ruled that challenges to the Waters of the U.S. rule must first go through federal district courts, rather than going straight to the circuit court level.

The Supreme Court (National Association of Manufacturers v. Department of Defense et al.) found that the WOTUS rule is not covered by the Clean Water Act’s Section 509 judicial review provision, which lists categories of EPA actions that circuit courts have exclusive power to review.

The Supreme Court directed the Sixth Circuit to dismiss petitions for review of the WOTUS rule for lack of jurisdiction. As a result, the Sixth Circuit’s nationwide stay of the WOTUS rule will no longer be in place.

The Supreme Court opinion was written by Justice Sonia Sotomayor.

Meanwhile, the Environmental Protection Agency and Army Corps of Engineers are still working on a rule to delay the applicability date of the 2015 WOTUS rule.

Overall, the American Public Power Association believes that the final rule is problematic because it would drastically expand the WOTUS jurisdiction of EPA and the Corps, which would subject more utility projects and activities to Clean Water Act jurisdiction. The Association therefore supports the finalization of the agencies’ proposed rule to rescind and recodify the pre-existing definition of “waters of the United States.”

WOTUS rule issued in final form in 2015

The final WOTUS rule, a joint effort by the EPA and the Corps of Engineers, defines which streams, wetlands and other bodies of water are protected under the Clean Water Act. The rule was issued in final form in May 2015 and published in the Federal Register the following month.

It went into effect in August of 2015 but was put on hold by a court order soon thereafter. In October 2015, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay on the rule, pending the resolution of numerous challenges filed against it.

President Trump in late February 2017 signed an executive order directing the EPA and the U.S. Army Corps of Engineers to consider rescinding or revising their WOTUS rule.

In June 2017, in response to that executive order, the EPA and the Army Corps of Engineers issued a proposed rule to serve as the first step toward rescinding the WOTUS final rule.

In November 2017, the agencies proposed to amend the effective date of the 2015 rule defining “waters of the United States.” The agencies’ proposal would delay the effective date by two years if finalized.

The amendment would give the agencies the time needed to reconsider the definition of “waters of the United States.”