On February 6, 2018, New York State filed suit against the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (together, “the agencies”) for the suspension of a 2015 regulation seeking to clarify the definition of “waters of the United States” under the Clean Water Act (“CWA”), dubbed the “Clean Water Rule” by EPA and called the “WOTUS Rule” by the U.S. Supreme Court, among others. New York was joined by California, Connecticut, Maryland, New Jersey, Oregon, Rhode Island, Vermont, Washington, Massachusetts, and the District of Columbia as plaintiffs.  The lawsuit, filed in the Southern District of New York, is a recent development in a long-running struggle to define jurisdictional waters—”waters of the United States” or WOTUS—under the CWA.

The states’ complaint challenges the “Suspension Rule”, a new rule issued by the agencies on February 6, 2018. The Suspension Rule provides an “applicability date” for the WOTUS Rule of February 6, 2020,  suspending the effective date to allow the agencies to review and revise the WOTUS Rule before it could take effect.

The complaint alleges that the agencies lacked authority to suspend the WOTUS Rule under the CWA and the Administrative Procedures Act, failed to provide a meaningful opportunity for public comment on the proposed Suspension Rule, and, in adopting the Suspension Rule, failed to consider relevant facts, law, and the goals of the CWA. The state plaintiffs describe themselves as “downstream from and/or otherwise hydrologically connected with many of the Nation’s waters” and allege that the WOTUS Rule protects them from pollution occurring in upstream states. They argue that without such protection, they are unfairly burdened by this pollution and by the costs of imposing more stringent regulations to avoid it.

Similar suits challenging the Suspension Rule were filed on February 6, 2018 by environmental groups in district court in New York and in South Carolina. Numerous other suits are expected.

The Suspension Rule continues the application of the agencies’ pre-2015 interpretation of the term “waters of the United States” while they are “reviewing and revising” the WOTUS Rule.  It follows the process set in motion by a February 2017 Executive Order directing the agencies to rescind or revise the WOTUS Rule.  The agencies proposed the withdrawal of the WOTUS Rule on June 27, 2017, and announced they were developing a new rule.  The February 6, 2020 applicability date of the WOTUS Rule would serve as a deadline for completion of that process.

Under the February 2017 Executive Order, the agencies are directed to consider Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 716 (2006), which defined WOTUS as waters  “containing a relatively permanent flow,” as well as adjacent wetlands “possessing a continuous surface connection” to those waters. According to the Suspension Rule’s preamble, the agencies’ pre-2015 interpretation of  WOTUS “remained largely unchanged since 1977”, and is informed by 2003 and 2008  guidance documents, as well as by Justice Kennedy’s concurring opinion in Rapanos.  Kennedy’s widely-cited opinion concluded that “waters of the United States” included waters or wetlands that had a significant nexus to traditional navigable waters. Wetlands could possess such a nexus if they, “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” Courts and the agencies have struggled to apply the Kennedy and Scalia tests, and this difficulty ultimately prompted the development of the WOTUS Rule.

The Suspension Rule was conceived in the context of pending litigation challenging the WOTUS Rule, due to the concern that the U.S. Supreme Court might hold in a case before it on interlocutory appeal that the Sixth Circuit lacked jurisdiction to review the WOTUS Rule, thus undermining the basis for the nationwide stay of the WOTUS Rule that the Sixth Circuit had imposed while it heard the challenges to the Rule.

On January 22, 2018, in National Association of Manufacturers v. Department of Defense, No. 16-299, 583 U.S. __ (2018), the Supreme Court ruled in a unanimous opinion that the federal district courts, rather than appellate courts, had original jurisdiction under the CWA to hear challenges to the WOTUS Rule. The consolidated case was remanded to the Sixth Circuit with instructions to dismiss it for lack of jurisdiction. The Court held that the various challenges to the WOTUS Rule were actions authorized by the Administrative Procedures Act, to be heard before the district courts, and did not fall into a category of cases for which the CWA provided exclusive review in the Courts of Appeal.

The Supreme Court’s ruling that jurisdiction lies in the district courts gives rise to the practical result that challenges to the WOTUS Rule and similar rules under the CWA now come with a six-year statute of limitations to bring suit under the Administrative Procedures Act.  Under the CWA, the statute of limitations would have been 120 days. This opens the possibility of more challenges to the WOTUS Rule being filed in the district courts in addition to those pending.

Additionally, as a result of the National Association of Manufacturers decision and stays of the WOTUS Rule are being sought in various district courts, with the potential for inconsistent rulings across the country.  The WOTUS Rule already had been preliminarily enjoined by a district court as early as 2015, pursuant to an order of the district court for North Dakota affecting 13 states: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming. That order remains in place, and other stays have been granted affecting additional states.

On February 9, 2018, plaintiffs challenging the WOTUS Rule asked the district court in Texas for a preliminary injunction staying the Rule nationwide. On February 15, 2018, the Eleventh Circuit granted a request from 10 state plaintiffs to remand their previously-halted challenge to the WOTUS Rule to district court so that those states could seek an immediate injunction halting implementation of the Rule.

A comprehensive overview of the substance of the WOTUS Rule is available here and here.

For more information about Clean Water Act jurisdiction and the future of the WOTUS Rule, please contact Victoria Treanor.