May 21, 2019

WOTUS and the Reach of CWA Jurisdiction

It has been nearly 45 years since the passage of the Clean Water Act, yet fundamental questions regarding the Act’s jurisdictional scope remain unanswered. Attempts at defining jurisdictional limits have resulted in significant confusion – the Rapanos case being a prime example. In an attempt to clarify this confusion, the Obama administration enacted the Clean Water Rule, a.k.a the Waters of the U.S. rule (WOTUS), in 2015.  Myriad court challenges have ensued, both over the substance of the rule and over which federal courts have jurisdiction to decide its fate.  The rule itself has been stayed.  The Trump administration has vowed to retract the rule, and environmental groups have vowed to fight any such attempt.   In addition, there are a number of other important CWA jurisdictional issues playing out.  This a pivotal moment in the history of one of the nation’s most significant environmental laws.

The Section established the WOTUS Working Group and this web page in order to keep Section members up to date on the ever changing landscape of CWA jurisdiction.  It contains a rich array of information, including key background documents, cases, and links to other resources.  The Working Group, led by Past Section Chair Steve Miano, will regularly update this web page.  We hope you visit it often.

Waters of the U.S. Rule | Wetlands | Water Transfers | CWA Jurisdiction Over Groundwater
Air/Water Interface and Jurisdiction | Pesticides Releases Over and Into Waters | Regulation of Forest Roads

  • March 18, 2019- EPA and Army Corps Deny Request to Extend Comment Period for WOTUS Replacement Rule. On March 18, 2019, EPA and the Army Corps announced that the 60-day comment period for the proposed WOTUS Replacement Rule would not be extended.  The announcement came in the form of an email to the parties that had requested the extension. The email did not provide an explanation for the agencies’ decision to retain the original April 15th deadline.    
  • March 8, 2019- EPA and Army Corps Drop Defense of WOTUS Delay Rule. The Department of Justice abandoned its defense of the WOTUS Delay Rule. Promulgated in early 2018, the Delay Rule stalled implementation of the WOTUS Rule for two years in order to give the agencies time to craft a rule to repeal and replace WOTUS. The Delay Rule was challenged in several federal district courts, including the Western District of Washington and the District of South Carolina, both of which struck down the Delay Rule. On March 8th, the Department filed motions to dismiss its appeals of those courts’ rulings it had brought on behalf of the agencies in the Ninth and Fourth Circuits, respectively. The Department also filed a similar motion in a pending suit challenging the Delay Rule brought by several states and environmental groups in the Southern District of New York.   
  • February 19, 2019- Supreme Court to Determine Whether CWA Jurisdiction Includes Groundwater Discharges. The Supreme Court granted certiorari in County of Maui v. Hawai’i Wildlife Fund (Supreme Court Case No. 18-260) to resolve a circuit split and answer “whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.” The Supreme Court granted cert after taking the unusual step of inviting the U.S. Government to weigh in on the issue and whether cert should be granted.

    Although County of Maui is the only case going before the Court at this time, the issue been the subject of three decisions issued by circuit courts within the past year:    

    Hawai’i Wildlife Fund v. County of Maui
    , 886 F.3d 737 (9th Cir. Feb. 1. 2018). Plaintiffs-Appellees filed suit arguing that the County of Maui violated the CWA by discharging pollutants from its wells at a wastewater reclamation facility into the Pacific Ocean. The court affirmed the district court, ruling that the wells were point sources because the treated effluent at issue was discharged into groundwater, through which the pollutants entered a “navigable water” – the ocean.

    Upstate Forever v. Kinder Morgan Energy Partners
    , 887 F.3d 637 (4th Cir. Apr. 12, 2018). The circuit court reversed, in a 2-1 decision, a lover court’s dismissal of a citizen suit for lack of standing. The majority held that the CWA prohibits the discharge of pollutants from a point source through groundwater that has a direct hydrological connection to navigable waters of the United States. Kinder Morgan has filed a cert petition that has not yet been ruled upon. 

    Kentucky Waterways Alliance v. Kentucky Utilities Co., 905 F.3d 925 (6th Cir. Sept. 24, 2018) and Tennessee Clean Water Network v. TVA, 905 F.3d 436 (6th Cir. Sept. 24, 2018). In companion cases, the Sixth Circuit rejected the hydrologic connection and point source theories upon which the Ninth and Fourth Circuits relied, holding that groundwater discharges are not subject to the CWA.

    Further clouding the issue of CWA jurisdiction over groundwater is internal tension (if not an outright split) within the Fourth Circuit caused by a panel’s ruling in Sierra Club v. Virginia Electric & Power Co., 903 F.3d 403 (4th Cir. Sept. 12, 2018), in which the court held that coal ash settling ponds were not a point source within the meaning of the CWA, and that a point source requires a “discrete conveyance”. 
  • February 14, 2019 - EPA/Army Corps Publish Revised WOTUS Rule. EPA and the Army Corps of Engineers published for comment the much-anticipated WOTUS replacement rule that would significantly reduce CWA jurisdiction. Comments must be received by April 15, 2019. 
  • February 1, 2019- Ohio District Court Allows Environmental Groups to Intervene in Challenge to WOTUS Rule. A district judge in the Southern District of Ohio ruled that EPA’s reversal of position on the WOTUS Rule has opened the door for several environmental groups to intervene in ongoing litigation to defend the WOTUS Rule against a challenge brought by three states. (State of Ohio v. EPA, U.S. District Court for the Southern District of Ohio, Case No. 2:15-cv-2467)
  • December 7, 2018- Oklahoma District Court Recommences WOTUS Rule Litigation. A district judge in the Northern District of Oklahoma reopened a case brought by the State of Oklahoma and a number of industry groups challenging the WOTUS Rule.
    (Oklahoma v. EPA, U.S. District Court for the Northern District of Oklahoma, Case No. 4:15-cv-381)
  • December 4, 2018- South Carolina District Court Issues Order Vacating WOTUS Delay Rule Nationwide. U.S. District Court for the District of South Carolina issued order clarifying that it had vacated the WOTUS Delay Rule nationwide in an earlier order and denied a motion to stay judgment pending appeal. (South Carolina Coastal Conservation League v. Pruitt, U.S. District Court for the District of South Carolina, Case No. 2:18-cv-00330) As of February 2019, an appeal by the U.S. Government to the Fourth Circuit is currently pending with appellants’ briefs due in March. (Fourth Circuit, Case No. 18-1988) 
  • November 26, 2018- Washington District Court Vacates WOTUS Delay Rule. A district judge in the U.S. District Court for the Western District of Washington vacated the WOTUS Delay Rule. As a result of this ruling, the 2015 WOTUS Rule will go into effect in the 22 states that are not subject to judicial stays. Puget Soundkeeper Alliance v. Wheeler, 2018 WL 6169196 (W.D. Wash. Nov. 26, 2018), Case No. 2:15-cv-1342. As of February 22, 2019, an appeal of this decision is pending before the Ninth Circuit. (Ninth Circuit Case No. 19-35074) 
  • September 18, 2018- Implementation of WOTUS Rule Blocked in Iowa. In ongoing litigation between a dozen states and the EPA over the WOTUS Rule, a federal district judge in North Dakota granted the State of Iowa’s request to temporarily block the WOTUS Rule from going into effect in Iowa. This ruling leaves only 22 states in which the WOTUS Rule is in effect. As of February 2019, cross motions for summary judgment on the merits have been filed and remain pending. (North Dakota v. EPA, U.S. District Court for the District of North Dakota, Case No. 3:15-cv-59)
  • September 12, 2018- Implementation of WOTUS Rule Blocked in Texas, Mississippi, and Louisiana. A judge on the U.S. District Court for the Southern District of Texas issued an injunction preventing the WOTUS Rule from going into effect in Texas, Mississippi, and Louisiana (the three plaintiff-states that filed the underlying challenge to the WOTUS Rule before the court) until the case is resolved. The court stopped short of issuing the nationwide injunction that plaintiff American Farm Bureau sought. As of February 2019, cross motions for summary judgment have been filed and remain pending. (State of Texas v. EPA, U.S. District Court for the Southern District of Texas, Case No. 3:15-cv-162)
  • SC District Court Invalidates Trump Administration’s Wotus Rule Delay. On August 16, 2018, the U.S. District Court for the District of South Carolina issued an opinion finding that the EPA and ACOE failed to comply with the Administrative Procedure Act when they issued the rule suspending for 2 years, the effective date of the Wotus Rule. It therefore enjoined the delay rule nationwide. This decision effectively reinstates the Wotus rule in 26 states. The other 24 states are subject to two other court decisions staying the Wotus rule.  
  • Pruitt Moves to Constrain EPA’s Power to Veto 404 Dredge and Fill Permits. On June 26, 2018, EPA Administrator Scott Pruitt signed a memorandum directing the agency to draft regulations that would significantly restrict EPA’s authority to veto dredge and fill permits issued by the Army Corps under section 404 of the CWA. Specifically, Pruitt directed the Office of Water to draft a proposal that would, among other things, eliminate EPA’s ability to veto 404 permits preemptively or retroactively, require regional administrators to obtain approval from headquarters before initiating the veto process, and open the veto process to public comment.   
  • White House Begins Review of EPA and Army Corps’ WOTUS Replacement Rule. On June 15, 2018, EPA and the Army Corps sent a proposal to redefine “waters of the United States” to the White House Office of Information and Regulatory Affairs (“OIRA”) for review. The proposal, if ultimately promulgated, would replace the WOTUS Rule. The proposal has not been made public, and OIRA reviews typically take several months. It is widely expected that the replacement rule will define “waters of the United States” more narrowly and in a manner that is consistent with Justice Scalia’s plurality opinion in the landmark Rapanos case, as directed by President Trump in a February 2017 executive order.
  • Environmental Groups Challenge WOTUS Rule, Effective Date Delay Rule. On June 13, 2018, the Center for Biological Diversity and several other organizations filed suit against EPA and the Army Corps, alleging that the agencies violated the Clean Water Act, the Administrative Procedure Act, the National Environmental Policy Act, and the Endangered Species Act. Plaintiffs brought a wide range of claims, challenging both the original WOTUS Rule and the subsequent rule delaying the WOTUS Rule’s effective date. Although this is only the latest in a long line of WOTUS Rule-related lawsuits, it is noteworthy because of the ESA-based claims. (U.S. District Court for the Northern District of California Case No. 18-cv-3521)
  • Coalition of Industry Groups Weighs in on WOTUS Litigation in North Dakota. On June 12, 2018, a coalition of industry groups filed an amicus curiae brief in support of 13 states that are challenging the WOTUS Rule in the U.S. District Court for the District of North Dakota. The WOTUS Rule is currently stayed in the 13 plaintiff-states as a result of a 2015 order by the district court. (U.S. District Court for the District of North Dakota Case No. 3:15-cv-59-DLH-ARS)
  • Federal Court in Georgia Enjoins WOTUS Rule. On June 8, 2018, a federal district judge in the Southern District of Georgia granted a motion for preliminary injunction filed by 11 states in a lawsuit that the states brought challenging the WOTUS Rule. The injunction prevents the Rule from taking effect in Georgia, Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, Utah, West Virginia, Wisconsin, and Kentucky. In its order, the court ruled that the WOTUS Rule was likely unlawful, and that the states would face irreparable harm absent the injunction. The injunction will not have any immediate impact because implementation of the WOTUS Rule has been delayed on a nationwide basis by the Trump Administration. However, the rule delaying the implementation of WOTUS is being litigated in federal courts in New York and South Carolina, and the Georgia court’s injunction could act as a backstop if the delay rule is struck down. These 11 states join 13 states that are subject to a similar injunction imposed by a federal court in North Dakota in 2015. (U.S. District Court for the Southern District of Georgia Case No. 2:15-cv-79)
  •  Supreme Court Declines to Clarify How Rapanosand Other Split Opinions Are to be Interpreted. Since the Supreme Court handed down its 4-1-4 decision in Rapanos in 2006, the prevailing wisdom, including among lower courts, has been that the “significant nexus” test set forth in Justice Kennedy’s concurring opinion in Rapanos is the proper test to establish the Clean Water Act’s jurisdiction. This outcome is based largely on a 1977 Supreme Court ruling in Marks v. United States, which stands for the proposition that in Supreme Court cases for which no opinion receives a majority, lower courts should follow the “narrowest” opinion that is necessary for the judgment in the case. In 2017, the Supreme Court granted certiorari in Hughes v. United States, a criminal sentencing case that the Eleventh Circuit Court of Appeals had decided based on an application of the “Marks rule” to a 4-1-4 Supreme Court decision issued in 2011. Two of the questions presented in Hughes pertained to the applicability and interpretation of the Marks rule, and had thus had considerable implications for the interpretation of Rapanos and, consequently, for the reach of Clean Water Act jurisdiction. However, despite the fact that the Marks rule questions loomed large in the briefs and at oral argument in Hughes, the Court ultimately declined to rule on those issues. In its June 4, 2018 majority opinion, the Court instead clarified its position on the determinative legal issue involved in the 2011 4-1-4 decision underlying the Hughes case, thus obviating the need to address questions regarding how the Marks rule is properly applied. As a result, the tenuous status quo created by the Rapanos decision remains
  • New York Court Denies Motions to Transfer Lawsuits Challenging WOTUS Delay Rule. On May 29, 2018,  the U.S. District Court for the Southern District of New York denied the federal government's request to transfer two pending challenges to the EPA and Army Corps’ rule delaying the implementation of the WOTUS Rule by two years. The agencies sought to transfer the cases to the U.S. District Court for the Southern District of Texas, arguing that because the cases were so closely related to suits challenging the WOTUS Rule itself that are pending in the Texas court, all of the cases should be ruled upon by the same judge. The New York court rejected the premise of that argument, writing that “at their core, the two suits are about different questions” in that the questions regarding the validity of the WOTUS Rule itself were distinct from questions regarding the validity of the rule delaying its implementation. (U.S. District Court for the Southern District of New York, Docket Nos. 18-CV-1030 and 18-CV-1048). Earlier this year, the U.S. District Court for the District of South Carolina denied a similar motion to transfer challenges to the delay rule that are pending before that court.
  • Coalition of States Moves for Summary Judgement in Delay Rule Challenge. On May 1, 2018, a coalition of states challenging EPA and the Army Corps’ rule delaying the effective date of WOTUS filed a motion for summary judgment in the Southern District of New York. The states argue that the delay rule was promulgated without undergoing the proper notice-and-comment rulemaking process, and that the rule is arbitrary and capricious because the agencies essentially redefined “waters of the United States” without considering a range of “relevant and important issues.” (U.S. District Court for the Southern District of New York, Docket No. 1:18-cv-1030)
  • North Dakota District Judge Denies Agencies’ Appeal to Stay Litigation. On May 1, 2018, a district judge in North Dakota affirmed a magistrate judge’s earlier ruling that litigation challenging the WOTUS Rule should recommence immediately. Rejecting EPA and the Army Corps’ argument that litigation should be stayed, the judge wrote that “while additional rulemaking [by the agencies] may make this case moot, such a possibility does not insulate the defendants from challenges to the original rule while the original rule remains in place.” (U.S. District Court for the District of North Dakota, Docket No. 3:15-cv-059)
  • WOTUS Rule Challenge Recommences in North Dakota Federal Court. After the Supreme Court issued its National Association of Manufacturers opinion, several of the states that filed suit challenging the WOTUS Rule in the District of North Dakota filed a motion to lift the stay on litigation pending the Supreme Court’s jurisdictional ruling. EPA and the Army Corps opposed the motion and filed a cross motion to stay the proceedings. On March 23, 2018, the presiding magistrate judge granted the states’ motion and denied the agencies’ cross motion, lifting the stay and allowing litigation on the merits to proceed. On April 6, 2018, the agencies appealed the magistrate judge’s ruling to the presiding district judge, arguing that the stay should remain in place because the government is in the process of rescinding and replacing the WOTUS Rule. (U.S. District Court for the District of North Dakota, Docket No. 3:15-cv-59)
  • WOTUS Rule Litigation to Recommence in Southern District of Georgia. After the Eleventh Circuit vacated and remanded an order entered by a district court in Georgia denying, a motion for preliminary injunction filed by eleven states seeking to enjoin EPA from enforcing WOTUS, EPA moved in district court to stay all proceedings in the case for at least one year. On March 9, 2018, following a preliminary injunction hearing, the district court denied the motion, but granted a 30-day stay. On April 16, 2018, the court scheduled a hearing for May 31, 2018 to hear arguments on the motion for preliminary injunction that it originally denied on the basis of lack of jurisdiction. (U.S. District Court for the Southern District of Georgia, Docket No. 2:15-cv-79)
  • Fourth Circuit Rules That Discharges via Groundwater Are Subject to the CWA. On April 12, 2018, the Fourth Circuit ruled in Upstate Forever v. Kinder Morgan Energy Partners, No. 17-1640 (4th Cir.), that discharges to hydrologically-connected groundwater can give rise to liability under the CWA. This decision comes two months after the Ninth Circuit reached a similar conclusion in Hawaii Wildlife Fund v. County of Maui
  • Environmental Groups Move to Reopen Challenge to WOTUS Rule in Western District of Washington. On April 6, 2018, a coalition of environmental groups moved to reopen their suit against EPA and the Army Corps, which had been stayed pending the outcome of the jurisdiction litigation. (U.S. District Court for the Western District of Washington, Docket No. 2:15-cv-1342)
  • South Carolina Federal Court Denies Motion to Transfer WOTUS Delay Rule Suit. Following a hearing on April 5, 2018, a federal court in South Carolina denied EPA and the Army Corps’ motion to transfer a lawsuit challenging the WOTUS delay rule to the Southern District of Texas. Similar motions are pending in companion cases filed in the Southern District of New York. (U.S. District Court for the District of South Carolina, Docket No. 2:18-cv-330)
  • Pruitt Assumes Control Over Key Jurisdictional Decisions. On March 30, 2018, EPA Administrator Pruitt issued a memo rescinding the authority previously delegated to regional administrators to exercise two of EPA’s key powers under the CWA. Pursuant to the memo, the Administrator now has the sole authority over EPA’s jurisdictional determinations regarding wetlands and small waterways. Although most such jurisdictional determinations are made by the Army Corps, EPA has the authority to take over jurisdictional determinations in “special cases…where significant issues or technical difficulties are anticipated or exist.” The Administrator also assumed sole authority to exercise  EPA’s power to veto the Army Corps’ Section 404 dredge and fill permitting decisions—an authority that has only been exercised thirteen times since the CWA was signed into law.
  • Northern District of Oklahoma Closes WOTUS Challenge Pending EPA’s Rulemaking. In companion cases, the State of Oklahoma and a coalition of business groups challenged WOTUS. Based on the Sixth Circuit’s jurisdictional ruling, the a federal district court in Oklahoma originally dismissed the cases and plaintiffs appealed. In January 2018, in light of the National Association of Manufacturers decision, the Tenth Circuit reversed and remanded to the district court. With the consent of all parties, the district court administratively closed the cases on March 9, 2018, pending the agencies rulemaking process to review and revise the WOTUS Rule. (U.S. District Court for the Northern District of Oklahoma, Docket Nos. 4:15-cv-381 and 4:15-cv-386)
  • Motions for Nationwide Stay of WOTUS Rule Filed in Southern District of Texas. In February 2018, two lawsuits challenging the WOTUS Rule—one filed by Texas, Mississippi, and Louisiana and the other by a coalition of agricultural groups—were reopened by a federal district court in Texas after being administratively closed pending a higher court’s ruling on the jurisdictional question. In both cases, plaintiffs immediately filed a motion for a nationwide preliminary injunction to stay implementation of the WOTUS Rule. EPA and the Army Corps opposed the motions, arguing that WOTUS will not be in effect for at least two years pursuant to the recently-issued final rule delaying the effective date, and may never go into effect in light of the agencies efforts to rescind and replace the WOTUS Rule. Intervening environmental groups also opposed the motions. The motions were taken under advisement following a preliminary injunction hearing held on February 22, 2018. (U.S. District Court for the Southern District of Texas, Docket Nos. 3:15-cv-162 and 3:15-cv-165)
  • Sixth Circuit Vacates Nationwide Stay and Dismisses Petitions Challenging WOTUS Rule. On February 28, 2018, pursuant to the Supreme Court’s opinion and order in National Association of Manufacturers v. Department of Defense, the Sixth Circuit vacated the nationwide stay on WOTUS and dismissed the consolidated petitions for review for lack of jurisdiction.
  • Supreme Court Denies Petition to Review Reinstatement of Water Transfers Rule. On February 26, 2018, the Supreme Court denied a petition for certiorari to review the decision of a split panel of the Second Circuit in Catskill Mountains Chapter of Trout Unlimited v. EPA. In Catskill Mountains Chapter of Trout Unlimited, the majority ruled to reinstate EPA’s 2008 Water Transfers Rule, holding that interbasin water transfers are exempt from CWA permit requirements. The Court applied Chevron to uphold the Rule, which states that water transfers—defined as “an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal or commercial use”—are not subject to NPDES permitting. Critics of the rule argue that it allows for the transfer of polluted water into clean water bodies without an NPDES permit.
  • Citing the Delay Rule and Pending Reconsideration of WOTUS Rule, the Northern District of Florida Stays WOTUS Rule Litigation. On February 23, 2018, a federal district court in Florida stayed a pending WOTUS challenge brought by a coalition of water groups in light of EPA’s delay rule and pending reconsideration of WOTUS. (U.S. District Court for the Northern District of Florida, Docket No. 4:15-cv-579)
  • Environmental Groups Issue Notice of Intent to Sue Over WOTUS Delay Rule Citing ESA Violations. On February 14, 2018, a coalition of environmental groups issued Notice of Intent to Sue: Violations of the Endangered Species Act Regarding Addition of an Applicability Date to 2015 Clean Water Rule to EPA and the Army Corps, giving the agencies 60 days to address the groups’ concerns.
  • EPA Considers Revising Policy Requiring CWA Permits for Discharges via Groundwater. In the wake of Hawai’i Wildlife Fund ruling, EPA is considering revising its policy of requiring permits for pollution of water bodies via groundwater. On February 12, 2018, EPA published a request for comment on the question of “whether subjecting [groundwater] releases to permitting is consistent with the text, structure, and purposes” of the CWA.
  • The Clean Water Act goes underground: An analysis and implications of the Ninth Circuit’s decision in Hawai’i Wildlife Fund v. County of Maui, (Trends, Mar/Apr 2018)
  • The Lawsuits Begin: As was widely expected, the Supreme Court’s recent decision in National Association of Manufacturers v. Department of Defense and a final rule issued by EPA and the Army Corps of Engineers delaying the implementation of the Obama Administration’s WOTUS Rule have opened the floodgates to additional litigation.

    On February 6, 2018 , the same day the agencies’ delay rule was published, three groups filed lawsuits challenging that rule. Two coalitions of environmental groups filed suit, one in the U.S. District Court for the District of South Carolina and the other in the U.S. District Court for the Southern District of New York. In addition, the attorneys general of ten states (New York, California, Connecticut, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, and Washington) and the District of Columbia also filed suit  in the Southern District of New York. All three lawsuits allege that by issuing the delay rule, the agencies exceeded their statutory authority under the Clean Water Act and the Administrative Procedure Act. It is widely expected that additional challenges will be filed in district courts throughout the country. 

    On the same day, a different group of ten states filed a brief urging the 11th Circuit to expedite the issuance of a mandate implementing its January 24 ruling to send the states’ challenge to the WOTUS Rule back to the U.S. District Court for the Southern District of Georgia in light of the National Association of Manufacturers decision. The coalition asserts that because the 6th Circuit will soon lift its nationwide stay of the WOTUS Rule as ordered by the Supreme Court in National Association of Manufacturers, the WOTUS Rule may soon go into effect if any of the groups seeking to block the delay rule are successful on the merits or in obtaining a temporary injunction. In order to prevent that possible outcome, the coalition argues that the Circuit Court’s mandate should issue so that the coalition may immediately seek a stay of the WOTUS Rule in the District Court pending the outcome of the coalition’s underlying challenge to the WOTUS Rule. EPA—which is in the odd position of being the defendant in the case—opposes the request to expedite the mandate, asserting that its delay rule will be sufficient to block implementation of the WOTUS Rule.

    Citing the same concern over the possibility of the WOTUS Rule going into effect once the 6th Circuit lifts the current nationwide stay and in the event that the agencies’ delay rule is blocked, plaintiffs challenging the WOTUS Rule in two pending cases in the U.S. District Court for the Southern District of Texas have sought a nationwide stay of the WOTUS Rule. The plaintiffs, in one case a group of three states (Texas, Louisiana, and Mississippi), and in the other a coalition of farm and industry groups, filed their motions on February 6 and 7, respectively.
  • Jurisdiction over Groundwater: In Hawai’i Wildlife Fund v. County of Maui, No. 15-17447 (9th Cir.), Plaintiffs-Appellees filed suit under the CWA, arguing that the County of Maui violated the CWA by discharging pollutants from its wells at the Lahaina Wastewater Reclamation Facility into the Pacific Ocean. Citing Justice Scalia’s plurality opinion in Rapanos, the panel affirmed the district court’s decision in favor of Plaintiffs-Appellees. The court found that the County’s wells were point sources because the treated effluent at issue was discharged into groundwater, through which the pollutants entered a “navigable water,” the ocean.  A Tracer Dye Study conducted by EPA and other institutions had, the court found, established the requisite hydrological connection because the pollutants were “fairly traceable” from the point source to a navigable water.  The opinion is available at:  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/01/15-17447.pdf
  •  White Paper: Supreme Court Rules that Federal District Courts Have Jurisdiction Over Challenges to the Waters of the United States Rule… What Now?
  • Agencies Finalize Rule to Postpone WOTUS Rule EPA Administrator Pruitt and Acting Assistant Secretary of the Army for Civil Works Fisher signed a final rule postponing the effective date of the Waters of the US Rule (WOTUS Rule) for two years. Upon formal publication, the rule will delay applicability of the 2015 WOTUS rule until well after an expected final order from the Sixth Circuit vacating its prior nationwide stay of the rule. EPA expects that the two-year delay will allow it and the Army Corps of Engineers time to rescind the 2015 WOTUS rule and later issue a new definition of WOTUS. Several environmental groups have stated their intent to challenge this latest action by EPA, which may also encounter opposition from various states who previously voiced opposition to the delay rule.
  • Waters of the U.S. Update.  The US Supreme Court held that jurisdiction to consider challenges made to the Waters of the United States (WOTUS) rule must be brought in the district courts. In National Association of Manufacturers v. Department of Defense, No. 16-299 (Jan. 22, 2018), Justice Sotomayor writing for a unanimous Court explained that the statutory language of the Clean Water Act provides for two primary avenues for review of agency determinations: some issues are left exclusively to federal courts of appeal, and all other issues are to be determined by federal district courts. The Court rejected the government’s efforts to fit within one of the statutory provisions allowing appellate court review in the first instance.
  • Two Pending Groundwater Discharge Cases.  The United States Court of Appeals for the Fourth Circuit is considering two cases regarding the extent of Clean Water Act jurisdiction over discharges to groundwater and the available remedies and enforcement mechanisms available for non-permitted groundwater discharges:
    • Upstate Forever v. Kinder Morgan Energy Partners, 4th Cir., No. 17-1640 (oral argument held on December 7, 2017, decision pending)
    • Sierra Club v. VEPCO, 4th Cir., No. 17-1895 (fully briefed, awaiting oral argument)
  • Conviction upheld based on Kennedy’s interpretation of CWA jurisdiction.  In United States v. Robertson, No. 16-30178 (9th Cir. Nov. 27, 2017), the Ninth Circuit upheld the conviction of a Montana resident charged with violating the CWA. The panel affirmed the district court’s reliance on the “significant nexus” test articulated by Justice Kennedy in Rapanos as the proper standard governing federal jurisdiction under the CWA. In accepting the “significant nexus” test, the court rejected the more restrictive test laid out by Justice Scalia in Rapanos.
  • Proposed Rule Delaying WOTUS - On November 16, 2017, EPA and the Army Corps of Engineers proposed a rule delaying the effective date of the Clean Water Rule until at least 2020. Although the Clean Water Rule took effect on August 28, 2015, it is currently stayed nationwide as a result of an order issued shortly thereafter by the Sixth Circuit. Under the proposed rule, the Clean Water Rule would not go into effect for two years. The agencies have begun the process of repealing the Clean Water Rule altogether, but it is possible that the Supreme Court’s ruling in a pending appeal could effectively lift the stay and allow the Rule to go into effect before the agencies are able to finalize its repeal. According to the agencies, the change in effective date “would maintain the legal status quo and thus provide continuity and certainty for regulated entities, the States and Tribes, agency staff, and the public.” The agencies will accept comments for 21 days after the proposed rule is published in the Federal Register. Link to Army Corps of Engineers Document
  •  New Proposal to Move the Effective Date of WOTUS - EPA and the U.S. Army Corps of Engineers have submitted a proposal to the White House Office of Management and Budget moving the effective date of the Clean Water Rule (“Rule”) from August 28, 2015 to an unspecified date. The Rule is currently stayed nationwide as the result of an order issued by the Sixth Circuit, which also ruled that jurisdiction to hear challenges to the Rule lies with the federal appeals courts, not the federal district courts. An appeal of that jurisdictional determination is currently pending before the Supreme Court, where the administration argued in favor of affirming the decision below. A reversal could, either explicitly or in effect, lift the nationwide stay and subject the Rule to challenges in district courts throughout the country. The administration has also proposed an outright repeal of the Rule, which is currently progressing through the notice and comment rulemaking process. Moving the effective date of the Rule could ensure that the Rule does not go into effect in any jurisdiction even if the Supreme Court reverses the Sixth Circuit before the administration finalizes its repeal of the Rule itself.
  • Supreme Court Hears Oral Argument in WOTUS Appeal: On October 11, 2017, the Supreme Court heard oral argument on the issue of whether jurisdiction to hear challenges to the Waters of the United States Rule lies with the federal district courts—as numerous states, industry groups, and environmental organizations contend—or with the federal appeals courts, as the Army Corps of Engineers and the EPA contend. The transcript of the proceedings is available here.
  • White Paper on Ninth Circuit Takes Another Look at WOTUS
  • Briefs Submitted in WOTUS case before SCOTUS:  On September 11, 2017, petitioner National Association of Manufacturers, along with the Utility Water Act Group and several states and environmental organizations, filed reply briefs with the Supreme Court in National Association of Manufacturers v. Department of Defense (Docket No. 16-299), contending that jurisdiction over challenges to the Waters of the U.S. Rule lies in the federal district courts rather than—as the federal respondents argue and a split panel of the Sixth Circuit held—in the circuit courts. The case is scheduled for oral argument on October 11, 2017.
  • Comment Period on Rescinding WOTUS Rule Extended.  The EPA and the ACOE have extended the comment period on their proposal to rescind the Waters of the US rule.  The agencies are extending the comment period for an additional 30 days.  The comment period will now end on September 27, 2017.

    Comments may be submitted electronically on the Regulations.gov web site.
  • WOTUS Appeal Update:  Federal Respondents file their brief in US Supreme Court on the question of which court has jurisdiction to hear challenges of the WOTUS regulations.  In their brief, the Federal Respondents argue that jurisdiction rests with the Courts of Appeal.
  • July 27, 2017 – The Army Corps of Engineers and Environmental Protection Agency published a proposed rule that would rescind the definition of “waters of the United States” promulgated in the 2015 Clean Water Rule. Under the proposed rule, which is the first step of an anticipated two-step, repeal-and-replace process, the agencies would continue to apply the definition in place prior to the Clean Water Rule. The agencies intend to craft and propose a revised definition at a later date. Comments on the proposed rule must be received by August 28, 2017.
  • White Paper on CWA Regulation of Stormwater Discharges from Logging Roads
  • Environmental Groups and Senate Democrats Request Additional Time to Comments on the Repeal of WOTUS -  Eighteen environmental groups and 22 Senate Democrats have requested additional time to comment on the Trump Administration’s recent proposal to rescind the WOTUS Rule.  Both groups state that the 30 day comment period on the recession is inadequate.  In a letter to EPA and the USACOE (https://www.lcv.org/article/re-clean-water-rule-repeal-comment-extension/), the environmental groups request at least 60 days to comment.  In their letter to Administrator Pruitt, the Senators request at least 90 days.
  • Supreme Court Sets Date for Argument on WOTUS Rule Jurisdiction Case – The question of whether U.S. Courts of Appeal or U.S. District Courts have jurisdiction to hear challenges to the WOTUS Rule will be heard by the U.S. Supreme Court on October 11, 2017.  (Nat’l. Ass’n. of Mfrs. V. DOD, U.S., No. 16-299, argument scheduled 7/19/17.)  The Court granted argument on the issue despite the Trump Administration’s objections that such a hearing is unnecessary given its intention to withdraw the rule.
  • EPA and ACOE Release New Economic Analysis of WOTUS Rule – The U.S. EPA and the ACOE recently release a new and revised economic analysis of the WOTUS Rule finding that the benefits of the WOTUS Rule do not outweigh its costs.  This analysis contradicts the economic analysis issued by the agencies under the Obama Administration when they first promulgated the rule.  The new analysis reduces the purported benefits of the rule by 85 to 90 percent.  EPA and ACOE state in the new analysis that their previous economic analysis was flawed.
  • Pruitt Signs WOTUS Recession Proposal
    On June 27, 2017, EPA Administrator Pruitt signed a proposed rule by the US EPA and the US Army Corps to repeal the Waters of the US rule.  The proposed rule is intended to repeal WOTUS and reinstate both mid-1980s regulations defining WOTUS and a 2008 guidance document.  Another future proposed rule is expected to redefine waters of the US in a manner consistent with the President’s Executive Order, which called for USCOE/EPA to consider defining jurisdictional waters under the Clean Water Act consistent with the late Justice Scalia’s narrower definition in Rapanos v. United States, 547 U.S. 715 (2006).  The proposed rule will be published in the Federal Register shortly.

    A significant number of comments on the proposal are expected, as are legal challenges to any final rule.
  • Center for Biological Diversity Sues EPA.  On June 1, 2017, the Center for Biodiversity (“CBD”) filed a lawsuit against EPA in the U.S. District Court for the District of Columbia seeking documents and communications regarding the development and issuance of Executive Order 13778 (“EO”). The EO, signed by President Trump on February 28, 2017, directs EPA and the Army Corps of Engineers to review and revise the Clean Water Rule promulgated by the Obama Administration. The complaint follows EPA’s failure to respond to CBD’s FOIA request. The FOIA request was prompted by media reports that EPA had reached out to states and private parties regarding the development of the Executive Order.
  • EPA Administrator Pruitt recuses himself from WOTUS cases:  EPA Administrator Scott Pruitt issued a recusal notice by memorandum dated May 4, 2017, announcing that he would not participate during his tenure as Administrator in any active case in which Oklahoma is a party, petitioner or intervenor, including the WOTUS cases pending in the Sixth Circuit Court of Appeals and the District Court for the Northern District of Oklahoma.
  • Opening round of briefs filed in SCOTUS appeal.  Petitioner, National Association of Manufacturers, and several respondents, including environmental groups, filed opening briefs in support of their position that jurisdiction over challenges to WOTUS lies not with the circuit courts, as the Sixth Circuit previously ruled, but with the federal district courts.
  • EPA issues slide show laying out potential approaches to revising WOTUS Rule:  U.S. EPA recently set out potential plans for revising the Waters of the U.S. Rule to be consistent with the late Justice Antonin Scalia’s opinion in Rapanos v. United States.  EPA released the slide show during a recent meeting with state and local officials held in Washington.  The slide show focuses on how EPA might limit the definition of “traditionally navigable waters” to “relatively permanent” waters with a continuous surface connection to truly navigable waters.
  • N.C. seeks leave to withdraw from WOTUS Challenge:  The state of North Carolina’s Department of Environmental Quality  filed a motion with the 11th Circuit to withdraw from litigation it filed challenging the Waters of the U.S. Rule.  The challenges pending before the 11th Circuit are currently stayed.  The 11th Circuit opted to defer to the 6th Circuit’s jurisdiction to hear challenges.  The question of which court has jurisdiction to hear WOTUS challenges is currently before the U.S. Supreme Court.
  • EPA Solicits Input on WOTUS Rule:  EPA recently sent a letter to intergovernmental associations soliciting input on its forthcoming proposal to rescind and revise the WOTUS Rule.  In the letter, EPA announced a two-step process that will (1) rescind the rule and (2) promulgate a revised rule consistent with the direction provided in the recent Executive Order.  A copy of the invitation can be found at the below link:
  • Regulatory Reform Task Force:  EPA announced a series of public meetings aimed at soliciting public input on the implementation of Executive Order 13777, the Regulatory Reform Task Force.  The Task Force will be evaluating which EPA regulations may need to be eliminated or revised. The meetings take place from April 24th through May 9th. The time and location of the meetings is contained in the attached email as well as information regarding provision of comments during the public comment period which ends on May 15, 2017.
  • Jurisdiction Over Groundwater:  In 2015, in Sierra Club v. Virginia Electric and Power Co., No. 15-cv-112 (E.D. Va.), plaintiff filed suit under the CWA, arguing that the defendant had violated the act by allowing arsenic from coal ash piles and lagoons at a now closed coal plant to seep into groundwater that was hydrologically connected to surface waters.  On March 23, 2017, after trial, the Court agreed, finding that Dominion’s coal ash piles and lagoons are discrete mechanisms conveying pollutants from its plant to surface waters.  The Court declined to impose a civil penalty or the removal of the coal ash, however, instead ordering Dominion to conduct monitoring and requesting additional input from the parties on the nature and scope of the required monitoring.
  • SCOTUS will not delay WOTUS hearing
    • On Monday April 3, 2017, the US Supreme Court denied the Trump Administration’s request to stay SCOTUS proceedings in whether the 6th Circuit has jurisdiction to hear challenges of the WOTUS Rule. A hearing before the Court is expected to take place in October. See Order at: https://www.supremecourt.gov/orders/courtorders/040317zor_e2p3.pdf
  • Contrasting opinions on SCOTUS review of WOTUS Rule
  • Latest Development on Rescinding the WOTUS Rule (3/1/17)

 

 

 

 

Fourth Circuit Rules That Discharges via Groundwater Are Subject to the CWA. On April 12, 2018, the Fourth Circuit ruled in Upstate Forever v. Kinder Morgan Energy Partners, No. 17-1640 (4th Cir.), that discharges to hydrologically-connected groundwater can give rise to liability under the CWA. This decision comes two months after the Ninth Circuit reached a similar conclusion in Hawaii Wildlife Fund v. County of Maui

    
  

January 6, 2017, U.S. Army Corps issued final package of nationwide permits (“NWPs”). NWPs do not refer to or apply WOTUS rule in light of the stay ordered by the Sixth Circuit. Package includes 50 reissued NWPs and 2 new NWPs authorizing removal of low-head dams that pose a threat to boaters (NWP 53), and construction and maintenance of living shorelines in estuarine and marine waters and the Great Lakes (NWP 54). The NWPs, which were granted a waiver from President Trump’s 60-day regulatory freeze, take effect on March 19, 2017 and expire March 22, 2022.

     
 
     
  

Foster v. Vilsack, 820 F.3d 330 (8th Cir. April 11, 2016), cert. denied, No. 16-186, 2017 WL 69190 (U.S. Jan. 9, 2017) – Pursuant to “swampbuster” provisions of Food Security Act of 1985, USDA determined that a portion of plaintiff-appellant’s farm constituted wetlands.  The court concluded that substantial evidence supported USDA’s findings that the property (1) had requisite hydrology to qualify as wetland and (2) would support a prevalence of hydroponic vegetation under normal circumstances, and thus affirmed the district court’s grant of summary judgment in favor of USDA. Although plaintiff-appellant’s petition for certiorari implicated a circuit split over whether the deference courts afford to an agency’s interpretation of its own regulation under Auer v. Robbins, 519 U.S. 452 (1997), extends to an agency’s construction of its own field manual, the Supreme Court denied the petition.


 
  

Mingo Logan Coal Co. v. EPA, 829 F.3d 710 (D.C. Cir. July 19, 2016) – Four years after the Army Corps issued plaintiff-appellant a CWA Section 404 dredge-and-fill permit with EPA’s concurrence, EPA revoked the permit with respect to a majority of the authorized discharge area on the basis that further study revealed that the project would result in “unacceptable adverse effect[s],” 33 U.S.C. § 1344(c), to wildlife and wildlife habitat. Concluding that EPA considered the relevant factors and adequately explained its decision, the court upheld the revocation, characterizing it as “a product of [EPA’s] broad veto authority under the CWA.” The court rejected Mingo Logan’s argument that EPA improperly failed to consider the costs incurred in reliance on the permit on the narrow grounds that Mingo Logan did not raise that claim with EPA or in the district court.


 
  

Gulf Restoration Network v. U.S. Army Corps of Engineers, No. CV 15-6193, 2016 WL 4987256, (E.D. La. Sept. 19, 2016) – Plaintiff filed an APA claim after the Army Corps refused to reopen a public comment period related to the potential issuance of a CWA Section 404 dredge-and-fill permit. The court granted the Army Corps’ motion to dismiss, ruling that the Corps’ decision did not meet either prong of the test established in Bennett v. Spear, 520 U.S. 154 (1997), and thus did not constitute a final agency action subject to judicial review under the APA. The court held that insufficient public notices are not final agency actions, but merely an intermediate step, and thus do not constitute grounds for judicial review.

     
 
     
   Turtles all the way down: Justice Scalia and the Clean Water Act
Trends November/December 2016

 
   Water Quality and Wetlands Committee Newsletter
Vol. 14, No. 2, August 2016
A joint newsletter of the Water Quality and Wetlands Committee, the Water Resources Committee, and the Constitutional Law Committee.

 
   Supreme Court: United States Army Corps of Engineers v. Hawkes Co.
Trends July/August 2016

 
   Judicial challenges to the Clean Water Rule: A brief and relatively painless guide for the procrastinator
Trends March/April 2016

 
   Wetland mitigation banking: An innovative practice grows to a major industry and provides an additional land revenue option
Trends September/October 2015

 
   The Fifth Circuit declines to extend Sackett to jurisdictional determinations
Trends March/April 2015

 
   The Court’s 2013 Term and environmental law: A whimper, not a bang
Trends September/October 2013

 
   Sackett v. EPA: Implications for administrative compliance
Trends September/October 2012

 
   Sackett v. EPA: Parties may challenge Clean Water Act compliance orders
Trends July/August 2012

 
   The Clean Water Act Handbook, Third Edition
     

Links to relevant committee pages

Read More
     
   Water Quality and Wetlands Committee

 
   Water Resources Committee
     

Water Transfers

Current Status

Read More
     
  

2nd Circuit denies reconsideration of water transfer decision: On April 18, 2017, the 2nd Circuit denied a motion for en banc review of its recent decision upholding EPA’s Water Transfer Rule in Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA. [See prior discussion elsewhere in this web site.]


 
  

Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, No. 14-1823, 2017 WL 192707 (2d Cir. Jan. 18, 2017) – In a significant 2-1 ruling, the Second Circuit applied Chevron to uphold EPA’s Water Transfers rule, which states that water transfers—defined as “an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal or commercial use”—are not subject to NPDES permitting.

     

Decisions/court documents

Read More
     
  

2nd Circuit denies reconsideration of water transfer decision: On April 18, 2017, the 2nd Circuit denied a motion for en banc review of its recent decision upholding EPA’s Water Transfer Rule in Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA. [See prior discussion elsewhere in this web site.]


 
  

Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, No. 14-1823, 2017 WL 192707 (2d Cir. Jan. 18, 2017) – In a significant 2-1 ruling, the Second Circuit applied Chevron to uphold EPA’s Water Transfers rule, which states that water transfers—defined as “an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal or commercial use”—are not subject to NPDES permitting.


 
  Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, No. 14-1823, U.S. Court of Appeals for the Second Circuit -  March 6, 2017, the Miccosukee Tribe of Indians of Florida, several states, and a number of environmental groups filed petitions asking the Second Circuit for en banc review of a 2-1 panel decision that revived an EPA rule allowing water to be transferred between basins without a permit, even if the water is contaminated.
     

Related Publications

Read More
     
   The future of Chevron? Second Circuit water transfer decision opens door to review
Trends May/June 2017

 
   NR&E Fall 2016 Issue
Topic: Water Conflicts

 
   LA County Flood Control District v. NRDC, Inc.: A rejection of joint and several liability under the Clean Water Act?
Trends May/June 2013

 
   Facts can be pesky things: SCOTUS takes up LA County Flood Control District v. NRDC
Trends January/February 2013

 
   The Clean Water Act Handbook, Third Edition
     

CWA Jurisdiction Over Groundwater

Decisions/court documents

Read More
     
   Jurisdiction Over Groundwater:  In 2015, in Sierra Club v. Virginia Electric and Power Co., No. 15-cv-112 (E.D. Va.), plaintiff filed suit under the CWA, arguing that the defendant had violated the act by allowing arsenic from coal ash piles and lagoons at a now closed coal plant to seep into groundwater that was hydrologically connected to surface waters.  On March 23, 2017, after trial, the Court agreed, finding that Dominion’s coal ash piles and lagoons are discrete mechanisms conveying pollutants from its plant to surface waters.  The Court declined to impose a civil penalty or the removal of the coal ash, however, instead ordering Dominion to conduct monitoring and requesting additional input from the parties on the nature and scope of the required monitoring.
Discussion
Opinion

 
   Sierra Club v. Ea. Elect. & Power Co., 2015 BL 367333, E.D. Va., No. 15-cv-00112 (11/6/15).

 
   Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC, No. 1:14-CV-753, 2015 WL 6157706 (M.D.N.C. Oct. 20, 2015).
     

Related Publications

Read More
     
   NR&E Fall 2016 Issue
Topic: Water Conflicts

 
   The Clean Water Act Handbook, Third Edition
     

Air/Water Interface and Jurisdiction

Related Publications

Read More
     
   The Court’s 2013 Term and environmental law: A whimper, not a bang
Trends September/October 2013

 
   The Clean Water Act Handbook, Third Edition
     

Pesticides Releases Over and Into Waters

Background information/documents

Read More
     
   Draft proposal for CWA permit for pesticide spraying
     

Related Publications

Read More
     
  The Clean Water Act Handbook, Third Edition
     

Regulation of Forest Roads

Related Publications

Read More
     
   The Court’s 2013 Term and environmental law: A whimper, not a bang
Trends September/October 2013

 
   Decker v. NEDC: The Supreme Court may not be the end of the (unregulated) forest road
Trends January/February 2013

 
   The Clean Water Act Handbook, Third Edition
     

Steven Miano, Chair
Hangley Aronchick, Segal Pudlin & Schiller
Philadelphia, PA

Robin Craig
University of Utah, School of Law
Salt Lake City, UT

Wendy Crowther
Parsons Behle & Latimer
Salt Lake City, UT

Brett Grosko
U.S. Department of Justice
Washington, DC

Peter Keays
Hangley Aronchick, Segal Pudlin & Schiller
Philadelphia, PA

Ilene Munk
Foley & Mansfield PLLP
Portland, OR

Craig Wilson
K&L Gates
Harrisburg, PA