On January 18, 2023, the U.S. Environmental Protection Agency (“EPA”) and the Department of the Army published a new final rule to re-define “waters of the United States” (“WOTUS”) under the Federal Clean Water Act (“CWA”). Although the rule is set to take effect March 20, 2023, the looming U.S. Supreme Court decision in Michael Sackett, et ux v. EPA, et al., Docket No. 21-454(2022) could establish additional legal precedent as to what constitutes WOTUS and could enable further legal challenges to the rule. If the rule goes into effect, it would broaden the types of water bodies subject to CWA regulation, while providing some clarity with regard to some newly excluded water features.
Senior Counsel Coty Hopinks-Baul recently published “The Tide Turns: Recent Developments In Federal Regulation Of Discharges To WOTUS” in Rock Products, discussing the changes the Biden Administration is expected to make to the federal regulation of discharges to waters of the U.S. (WOTUS). The article provides a brief round-up on some of these actions and…
The Trump administration announced in December 2018 its proposed replacement rule defining “waters of the United States.” Under the proposed rule, the number of wetlands that fall outside of federal jurisdiction is expected to increase.
Phillip Bower and Megan McLean weigh in on what this means for state regulation of non-federal wetlands in the recent…
Ali Nelson, Senior Counsel, was featured in Rock Products October edition discussing the litigation surrounding the regulatory definition of ‘Waters of the United States’ and the recent court decisions leading to the application of different definitions in different states.
On January 22, 2018, the U.S. Supreme Court unanimously held that challenges to the 2015 Waters of the United States Rule (the “WOTUS Rule” or “Rule”) belong in district court rather than the appellate court. The WOTUS Rule was developed by the U.S. Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) to clarify which waters and wetlands fall under federal jurisdiction. Numerous parties challenged the Rule in both federal district courts and circuit courts of appeals. The circuit court actions were consolidated in the Court of Appeals for the Sixth Circuit. In 2016, the Sixth Circuit held that it had jurisdiction to hear petitions related to the legality of the Rule and issued a nationwide stay. This decision was appealed to the Supreme Court by industry groups who argued that, under the plain text of the Clean Water Act, the district courts were the proper jurisdiction.
In an opinion authored by Justice Sonia Sotomayor, the Court noted that the Clean Water Act lists seven specific categories of EPA actions that federal courts of appeals have the exclusive power to review and the Rule did not fall into a category on the list. The Court determined that it had “no basis to depart from the [Clean Water Act]’s plain language” despite arguments by the U.S. government (forwarded by both the Obama and Trump Administrations) that the Rule was “functionally related” to categories on the list and that efficiency, national uniformity, and other policy arguments weighed in favor of making the circuit courts of appeals the appropriate jurisdiction. The Court reversed and remanded the case to the Sixth Circuit, directing the court to dismiss the petitions for review that had been filed.
Because the Supreme Court’s decision was related to jurisdiction and not the merits of the Rule, what does this mean for the Rule’s future?
The U.S. EPA and U.S. Army Corps of Engineers have proposed to delay the effective date of the 2015 Waters of the United States (WOTUS) rule which clarifies which waters and wetlands fall under federal jurisdiction. According to the agencies, the delay is necessary to help avoid confusion among home builders, contractors, and miners.
The 2015 WOTUS rule has an effective date of August 28, 2015, but