By Andrea Hogan, Lucas Quass, John Morris and Steven Mach
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...
