Supreme Court Rules WOTUS Challenges Properly Before Federal District Courts

By: Armando F. Benincasa

Published: January 22, 2018

In an important procedural decision, a unanimous United States Supreme Court ruled that challenges to the 2015 Obama-era rule re-defining Waters of the United States (WOTUS) under the Clean Water Act were properly before federal district courts and not federal courts of appeal.  This ruling overturned a previous decision by the Sixth Circuit Court of Appeals that found it had jurisdiction to hear the challenge and further to consolidate challenges from across the country before it.

The ruling found that the WOTUS rule was not one of the limited enumerated matters under the CWA which could be challenged directly to the courts of appeal. Specifically, the Court found that Section 509(b)(1)(E) of the CWA which addressed challenges to the promulgation of effluent limitations or “other limitations” did not apply.  The rule, which largely re-sets the definition of what is and what is not a water of the United States and therefore subject to federal jurisdiction and permitting, was found not to be a limitation subject to this section of the Act. Justice Sonia Sotomayor wrote:

It is true that Congress could have funneled all challenges to national rules to the courts of appeals, but it chose a different tack here: It carefully enumerated the seven categories of EPA action for which it wanted immediate circuit court review and relegated the rest to the jurisdiction of the federal district courts[.]

The Court further found that the WOTUS rule was not a challenge to the issuance or denial of a permit under Section 509(b)(1)(F) of the Act as well AS rejecting the government’s argument that the promulgation of the WOTUS rule was “functionally similar” to the denial of a permit.

Although the WOTUS rule may define a jurisdictional prerequisite of the EPA’s authority to issue or deny a permit, the rule itself makes no decision whatsoever on individual permit applications.

The Court in the end relied upon the general provisions of the Act which allows for challenges of agency actions to the federal district courts in ruling that the proper venue for the challenge to WOTUS was before the individual federal district courts thus also creating substantial uncertainty as to the status of the various challenges to the WOTUS rule already underway.

The ruling does not address the merits of the challenges to the WOTUS rule and implicates the status of the nationwide injunction entered by the Sixth Circuit Court of Appeals and currently in place enjoining enforcement of the WOTUS rule.  The decision will likely result in new filings in various federal jurisdictions in an attempt to enjoin implementation of the rule where prior challenges had not been filed largely depending upon the injunction put in place by the Sixth Circuit.

This decision also does not address and has no impact upon the Trump Administration’s ongoing efforts to promulgate a replacement for the WOTUS rule.  EPA Administrator Scott Pruett only two weeks ago affirmed his agency’s commitment to promulgate a new WOTUS rule in 2018.

A copy of the Court’s decision may be accessed here.

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