Unanimous Supreme Court: WOTUS Rule Challenges Belong in Federal District Courts

by Beveridge & Diamond PC

Beveridge & Diamond PC

In a unanimous opinion, the Supreme Court today held that lawsuits challenging the 2015 rule amending the definition of waters of the United States (WOTUS Rule) under the Clean Water Act (CWA) must be brought in federal district courts because federal courts of appeals lack jurisdiction over those challenges.  The case, National Association of Manufacturers v. Department of Defense, resolves uncertainty over the scope of the CWA’s judicial review provisions.  The Court’s opinion also opens a new chapter in the fight to keep the WOTUS Rule from going into effect.

The Court rejected arguments that the WOTUS Rule fell into either of two categories of agency action subject to the courts of appeals’ exclusive jurisdiction under CWA section 509(b)(1): (1) approval or promulgation of “any effluent limitation or other limitation” or (2) issuance or denial of an NPDES permit under section 402.  33 U.S.C. § 1369(b)(1)(E)-(F).  The justices concluded that the first category is limited to substantive restrictions on the discharge of pollutants rather than actions that define the geographic scope of the CWA.  The Court further determined that the CWA’s plain language precluded holding that the WOTUS Rule could be considered an issuance or denial of an NPDES permit.

The Court’s decision immediately has the potential to allow the WOTUS Rule to go into effect in the absence of further action from the executive branch or litigants challenging the rule in district court.  The courts of appeals’ lack of jurisdiction means that the Sixth Circuit’s nationwide stay of the WOTUS Rule—in effect since 2015—must be lifted.  With that stay terminated, the rule will become effective in all but thirteen states,[i] which are the subject of a preliminary injunction issued by a district court in North Dakota.  See North Dakota v. EPA, No. 3:15-cv-00059.  One should expect states and organizations challenging the rule to seek additional relief to prevent the WOTUS Rule from going into effect in the rest of the country while challenges continue to work their way through the courts.

This development also places greater urgency on the Trump administration to finalize its proposed rule to delay the WOTUS Rule’s effective date.  On November 22, 2017, EPA and the Army Corps of Engineers published a proposed rule in the Federal Register that would delay applicability of the WOTUS Rule for two years from the date of this new rule becoming final.  The comment period for this proposal closed on December 13, 2017.  If finalized, and not successfully challenged, this two-year delay would provide the administration additional time to implement its two-step approach to the repeal and then the replacement of the WOTUS Rule.  EPA and the Army Corps started this process this past summer by proposing a rule that would reinstate the pre-2015 definition of WOTUS. 

Today’s Supreme Court decision, while resolving an important procedural question under the CWA, is just the start of what should be a new flurry of activity in the fight over how to define WOTUS.  Expect action from both the Trump Administration and the Courts addressing if and when the WOTUS Rule goes into effect.  At the same time, substantive challenges to the WOTUS Rule on its merits, as well as the administration’s efforts to repeal and replace it, will continue in the months to come.  By virtue of today’s decision, these challenges will play out in federal trial courts, not the courts of appeals.

[i] Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Beveridge & Diamond PC | Attorney Advertising

Written by:

Beveridge & Diamond PC

Beveridge & Diamond PC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.