Supreme CourtThe Supreme Court today ruled that litigation over the controversial 2015 definition of what constitutes “waters of the United States” (WOTUS) must be brought in to the federal district courts rather than circuit courts ─ a decision that will finally allow litigation over the rule to move forward.

In 2015, the Obama Administration issued a new definition of WOTUS when referring to that term in the Clean Water Act (CWA). That definition was immediately met with litigation around the country.

Unfortunately, the Environmental Protection Agency and U.S. Army Corps of Engineers erroneously believed that any litigation must be brought in the federal circuit (or appellate) courts, as opposed to the district (or trial) courts.  This mistake forced litigants to file cases both in district court and circuit court.

Eventually, the circuit court cases were consolidated in the Sixth Circuit Court of Appeals, which ruled that it did have jurisdiction over the challenges to the 2015 WOTUS rule. The Sixth Circuit also issued a nationwide stay of the rule.

Numerous litigants, including NAHB, disagreed with the Sixth Circuit and took the question over jurisdiction to the U.S. Supreme Court.  Today, that court unanimously agreed with NAHB’s position.

The government had asserted many arguments to support its belief that the Sixth Circuit had original jurisdiction over the cases challenging the rule. The Supreme Court, however, explained that the text of the CWA simply did not support any of the government’s arguments.  Therefore, the litigation over the 2015 WOTUS rule must begin in the federal district courts.

Now that the court has answered this question, it will issue a “mandate” to the Sixth Circuit in February and the Sixth Circuit will eventually dismiss all of the circuit court cases.  At the same time, the nationwide stay of the 2015 WOTUS rule will disappear.

However, the North Dakota District Court has enjoined the EPA from enforcing the rule in 13 states and that injunction remains in place.  Therefore, in the next month, NAHB will focus on convincing a district court to issue a nationwide stay of the 2015 WOTUS rule.

This decision may lead to some confusion in the coming days and weeks. It’s conceivable that the 2015 rule could take effect in some states unless the courts, Congress or the agencies take action.

The Trump Administration continues its efforts to rescind the 2015 WOTUS rule and replace it with a new definition that will seek to provide needed clarity and narrow federal CWA authority.

In addition, both the House and Senate fiscal 2018 Interior Appropriations bills and the fiscal 2018 House Energy and Water Appropriations bill include language that would allow the EPA to withdraw the 2015 rule without subjecting this action to judicial review.

This would help the EPA quickly finalize the withdrawal of that rule, ending any uncertainty and allowing all parties to focus time and efforts on creating a new rule.

For additional information, contact Tom Ward.