November 15, 2018

Waters of the U.S. Rule

Return to WOTUS and the Reach of CWA Jurisdiction

  

Current Status | Background information | Decisions/court documents | Related Publications
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Waters of the U.S. Rule

 

Current Status

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.

 

 

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)

 

 

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)

 

 

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)

 

 

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.

 

 

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.
   
 

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.

 

  11 AGs Oppose Postponing Effective Date of WOTUS Rule.  The attorneys general of ten states (New York, Massachusetts, California, Hawaii, Maine, Maryland, Oregon, Rhode Island, Vermont, and Washington) and the District of Columbia submitted comments to EPA and the Army Corps of Engineers opposing a proposed rule that would postpone the effective date of the Obama Administration’s Clean Water Rule. The attorneys general argue, among other things, that the proposed rule violates the procedural requirements of the Administrative Procedure Act, and, if promulgated, would exceed the agencies’ statutory authority, and be arbitrary and capricious in a number of respects.
     
 

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)
     
  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.

 
  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.

 
  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.

 
  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:

Invitation Letter

 
  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)

 
  Breaking Development on the WOTUS Rule (2/22/17)

 
  New draft House Bill aimed at limiting the definition of Waters of the US aimed at limiting the definition of “navigable waters” in the CWA to waters that are “navigable-in-fact or are permanently flowing bodies of water that physically connect to navigable waters.”  This definition is arguably more limiting than former Justice Scalia’s definition articulated in the Rapanos decision.

 
  Wetlands Scientists Letter Endorsing WOTUS Rule

 
   January 18, 2017, at his confirmation hearing, Scott Pruitt states that Congress should clarify the meaning of “waters of the United States.”

 
   U.S. Senate Committee on Environment & Public Works, hearing on the Nomination of Attorney General to be Administrator of the U.S. Environmental Protection Agency (January 18, 2017)

 
  33 C.F.R. 209.120 (1976)
     

Background information/documents

     
   Waters of the United States – Final Rule (June 29, 2015)
     

     Comments, etc. on Proposed Rule

     
  FWQC Comments on Proposed WOTUS Rule (Nov. 14, 2014)

 
  AAR Comments on Proposed WOTUS Rule (Nov. 14, 2014)

 
  WAC Comments (Nov. 13, 2014)

 
  SBA OA Letter to EPA re WOUS Proposal (Oct. 1, 2014)

 
  SBA OA Fact Sheet re WOUS Proposal (Oct. 1, 2014)

 
  Letter from State AGs re WOUS Proposal (Sept. 16, 2014)

 
  EPA Q+A re WOUS Proposal (Sept. 2014)

 
  WAC Review of Econ. Analysis (May 14, 2014)

 
  Congressional Letter re WOUS Proposal (May 1, 2014)
   

     Connectivity Study

   
  Connectivity - Scientific Review - Final (Jan. 2015)

 
  Connectivity - Fact Sheet (Jan. 2015)

 
  EPA Ltr re SAB Final Review of Draft Connectivity Study (Oct. 17, 2014)

 
  SAB Draft Review of Draft Connectity Study (Aug. 11, 2014)

 
  SAB Draft Review of Draft Connectity Study (June 5, 2014)

 
  SAB Draft Review of Draft Connectity Study (Mar. 25, 2014)

 
  EPA Presentation on Connectivity Study (Dec. 2013)

 
  Clarification re Consideration of Public Comments

 
  78 Fed. Reg. 58536 (Sept. 24, 2013) - Notice of Connectivity Study

 
  EPA Draft Report on Connectivity (Sept. 2013)

 
  Technical Charge to External Peer Reviewers
   

     Corps-EPA Guidance

   
  Corps Presentation

 
  DRAFT Corps-EPA Guidance on Waters of the US (Apr. 27, 2011)

 
  Q+A Regarding 2008 Guidance

 
  Corps-EPA Guidance on CWA Jurisdiction (Dec. 2, 2008)

 
  72 Fed. Reg. 31824 - notice of 2007 guidance

 
  Corps-EPA MOA (June 5, 2007)

 
  Corps-EPA Guidance - replaced by 2008 guidance

 
  Corps-EPA Joint Memo re SWANCC (Jan. 15, 2003)
   

     Corps-EPA Regulations

   
  40 C.F.R. 230.3(s) (2013) - EPA Definition of Waters of the US

 
  40 C.F.R. 122.2 (2013) - NPDES Definition of Waters of the US

 
  33 C.F.R. Part 328 (2012) - Corps Definition of Waters of the US

 
  51 Fed. Reg. 41206 (Nov. 13, 1986)

 
  33 C.F.R. 323.2 (1985) - WOUS definition

 
  33 C.F.R. 323.2 (1983) - WOUS definition

 
  33 C.F.R. 323.2 (1978) - WOUS definition

 
  40 Fed. Reg. 31320 (July 25, 1975)

 
  33 C.F.R. 209.120, .260 (1974)
   

     Final Rule (May 2015)

   
  EPA-Corps Memo on Implementation of Clean Water Rule (2015)

 
  Economic Analysis for WOTUS Rule (May 2015)
     

Decisions/court documents

     WOTUS Litigation in Sixth Circuit

     
   Sixth Circuit decision putting WOTUS on hold, pending review

 
   April 21, 2016, Sixth Circuit denies motion for en banc rehearing to revisit a panel ruling that proper jurisdiction over challenges to the Clean Water Rule lay with the appellate court, not the district courts.

Order

 
   January 25, 2017, Sixth Circuit holds in abeyance litigation challenging WOTUS until the Supreme Court rules on the Sixth Circuit’s determination that it, and not the district courts, had jurisdiction over challenges to the Clean Water Rule.

Sixth Circuit’s opinion

 
   September 2, 2016, National Association of Manufacturers files petition for certiorari regarding Sixth Circuit’s jurisdictional ruling.

Petition for Certiorari

 
   January 13, 2017, Supreme Court grants certiorari in order to determine “whether the Sixth Circuit erred when it held that it has jurisdiction under 33 U.S.C. § 1369(b)(1)(F) to decide petitions to review the waters of the United States rule, even though the rule does not ‘issu[e] or den[y] any permit’ but instead defines waters that fall within Clean Water Act jurisdiction.”

Question Presented in Supreme Court docket no. 16-299, National Association of Manufacturers v. Dept. of Defense

 
  Order Denying Rehearing En Banc (Apr. 21, 2016)

 
  Opinion and Order re Jurisdiction (Feb. 22, 2016)

 
  Order Granting Stay Nationwide (Oct. 9, 2015)

 
  Consolidation Order (July 28, 2015)
     

     WOTUS Litigation in Other Courts

     
   White Paper on Ninth Circuit Takes Another Look at WOTUS

 
   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.

 
   November 8, 2016, U.S. District Court for the District of Minnesota dismissed WOTUS challenge without prejudice, ruling that because “the Sixth Circuit has exclusive jurisdiction to hear challenges to the Clean Water Rule, this Court lacks subject matter jurisdiction over this case.” Washington Cattlemen’s Association et al. v. EPA, No. 0:15-cv-03058 (D. Minn. Nov. 8, 2016).

Opinion and Order

 
   August 16, 2016, Eleventh Circuit holds in abeyance a WOTUS challenge “pending a decision of the Sixth Circuit on the issue involving the validity of the Clean Water Rule.” State of Georgia et al. v. McCarthy, No. 15-14035 (11th Cir. Aug. 16, 2016).

Order

 
   May 24, 2016, U.S. District Court for the District of North Dakota stayed proceedings in WOTUS challenge pending further decision by the Sixth Circuit or Supreme Court. State of North Dakota et al. v. EPA, No. 3:15-cv-59 (D. N. D. May 24, 2016).

Opinion and Order

 
   May 3, 2016, U.S. District Court for the District of Arizona dismisses WOTUS challenge in light of Sixth Circuit’s ruling on jurisdiction. Arizona Mining Association v. EPA, No. 15-01752 (D. Ariz. May 3, 2016).

 
   April 25, 2016, U.S. District Court for the Southern District of Ohio dismisses WOTUS challenge for lack of jurisdiction in light of Sixth Circuit’s ruling. State of Ohio v. EPA, No. 2:15-cv-2467 (S.D. Ohio April 25, 2016).
     

Related Publications

     
   President Trump’s executive order on the waters of the United States rule
Trends May/June 2017

 
   NR&E Fall 2016 Issue
Topic: Water Conflicts

 
   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.

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

 
   Waters, waters everywhere: Does the proposed definition of waters of the United States expand the Clean Water Act’s reach?
Trends November/December 2014

 
   The Clean Water Act Handbook, Third Edition
     

Links to relevant committee pages

     
   Water Quality and Wetlands Committee

 
   Water Resources Committee
     

Additional helpful links

     
   American College of Environmental Lawyers’ analysis of the rule for the Environmental Council of the States

Bookmark this page or use the short URL http://ambar.org/environwotus