On January 22, 2018, the U.S. Supreme Court held that lawsuits challenging the joint EPA-Army Corps rule defining “waters of the United States” (WOTUS) must be filed in federal District Courts. The Supreme Court’s decision overturns the Sixth Circuit’s February 2016 decision that the federal Circuit Courts have exclusive jurisdiction, pursuant to Section 1369(b)(1) of the Clean Water Act (CWA), to adjudicate challenges to the WOTUS rule. Notably, the Supreme Court determined that the WOTUS Rule does not fall within any of the seven categories of EPA actions for which the Circuit Courts have exclusive jurisdiction to review under CWA § 1369(b)(1). With respect to the two specific categories of EPA actions at issue, the Court held that the WOTUS rule is not: (1) an “effluent limitation” or “other limitation” under CWA § 1369(b)(1)(E), or (2) an EPA action “in issuing or denying any permit under section 1342” pursuant to CWA § 1369(b)(1)(F).
With the District Courts having jurisdiction over challenges to the WOTUS rule, the cases pending in the Circuit Courts are to be dismissed per the Supreme Court’s instruction. The cases in District Courts that were stayed pending the Supreme Court’s decision will likely move forward. It should also be noted that the WOTUS rule remains on the books for now. With respect to the status of the WOTUS rule, interested parties should monitor two proposed rules issued by the EPA and Army Corps: (1) rule that would rescind the WOTUS rule and recodify the prior regulatory definition of WOTUS (82 Fed. Reg. 34899), and (2) proposed rule that would set a new effective date for the WOTUS rule two years from the date of the final action on the proposed rule (82 Fed. Reg. 55542). The WOTUS rulemaking process may be tracked on EPA’s website.