On January 13, 2017, the US Supreme Court granted certiorari for an appeal that will allow the Court to determine the proper jurisdiction for litigation challenging the Clean Water Rule (the Final Rule).[1] The federal Clean Water Act (CWA) provides for original jurisdiction in the Circuit Courts of Appeal for certain categories of actions taken by the US Environmental Protection Agency (EPA). By accepting review of the appeal, the Court will now decide whether to affirm the Sixth Circuit Court of Appeal’s assertion of original jurisdiction over litigation challenging the Final Rule, and in doing so, the Court will set the stage for consideration of Final Rule litigation on the merits. As a result of the Supreme Court’s grant of certiorari, on January 25, 2017, the Sixth Circuit Court of Appeal granted a motion to hold in abeyance the litigation over the Final Rule until the US Supreme Court reaches a decision regarding jurisdiction.
Clean Water Rule’s Broad Application
EPA and the US Army Corps of Engineers (Corps) jointly issued the Final Rule to define “waters of the United States” (WOTUS), a threshold term that delimits CWA’s scope and application. The Final Rule has broad application. It defines jurisdictional waters not only for Section 404 of the CWA (permitting for dredge and fill operations) but also under Section 303 (addressing water quality standards and maximum daily loads); Section 311 (relating to oil spill prevention and response); Section 401 (concerning state water quality certifications); and Section 402 (establishing the National Pollutant Discharge Elimination System (NPDES) permit program). Critics of the Final Rule argue that it expands federal jurisdiction significantly beyond the bounds of court precedent interpreting the CWA’s statutory mandate. We previously published a Client Alert that discusses the Final Rule’s scope and implications in greater detail.
The Agencies’ Jurisdictional Victory in the Sixth Circuit and the Grant of Certiorari
Shortly before the Final Rule was scheduled to take effect on August 28, 2015, challenges to the Final Rule were filed in district courts and circuit courts across the country, including a challenge by 13 states in the US District Court for the District of North Dakota[2], and many were transferred to and consolidated before various US Court of Appeals. The US Judicial Panel on Multidistrict Litigation consolidated the petitions before the circuit courts for review and selected the US Court of Appeals for the Sixth Circuit to hear the consolidated petitions. On October 9, 2015, the Sixth Circuit stayed the implementation of the Final Rule nationwide. Many petitioners then moved for a voluntary dismissal of their case, arguing that the Sixth Circuit lacked jurisdiction. On February 22, 2016, in a 2-1 decision, the Sixth Circuit determined that it has jurisdiction over the numerous legal challenges to...
