March 01, 2018

In Brief

John R. Jacus

Clean Water Act, jurisdiction to hear challenges to WOTUS Rule

Nat’l Ass’n of Manufacturers v. Dep’t of Def., No. 16–299, 2018 WL 491526 (U.S. Jan. 22, 2018).
The U.S. Supreme Court unanimously resolved the hotly contested issue of where challenges to a rule defining the scope of the statutorily regulated “Waters of the United States” (WOTUS Rule or Rule) under the Clean Water Act must be filed—in the federal district courts, not federal circuit courts of appeal. In 2015, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) proffered a new definition of the term “waters of the United States” through the WOTUS Rule. Immediately following promulgation of the rule, a number of parties, including National Association of Manufacturers (NAM), challenged the Rule in United States district courts across the country. Many parties also filed “protective” petitions for review in various courts of appeals to preserve their challenges should their district court lawsuits be dismissed for lack of jurisdiction under § 1369(b). The circuit-court actions were consolidated and transferred to the Court of Appeals for the Sixth Circuit. NAM intervened as a respondent in the Sixth Circuit and moved with other parties to dismiss for lack of jurisdiction. The federal government opposed those motions, arguing that the challenges must be brought first in the court of appeals because the WOTUS Rule fell within subparagraphs (E) and (F) of § 1369(b)(1), which provides for initial review in the appellate courts of EPA actions affecting effluent limitations or in granting or denying any permit issued under the Clean Water Act. The Sixth Circuit denied the motions to dismiss and on that jurisdictional basis rejected the 2015 WOTUS Rule. But the Supreme Court reversed the Sixth Circuit decision, holding that neither subparagraph (E) nor subparagraph (F) of § 1369(b)(1) grants courts of appeals exclusive jurisdiction to review the WOTUS Rule in the first instance because the Rule is not an “effluent limitation” or “other limitation” similar in kind to an “effluent limitation,” and because it is not a limitation promulgated or approved “under section 1311.” Instead, the Court held that the WOTUS Rule was promulgated or approved under § 1361(a), which grants EPA general rulemaking authority “to prescribe such regulations as are necessary to carry out[its] functions under” the Clean Water Act.

For additional materials on the WOTUS rule and EPA regulatory actions in response to this case, see the Section’s WOTUS and the Reach of CWA Jurisdiction webpage.

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