By Emily Taylor, Porter Wright Morris & Arthur LLP

On October 11, 2017, the United States Supreme Court heard oral arguments on whether challenges to the Obama administration’s Waters of the United States (WOTUS) rule must be brought in a district court or a court of appeals. The case before the Supreme Court is an appeal from industry of the decision from the U.S. Court of Appeals for the Sixth Circuit that circuit courts, not district courts, have jurisdiction to decide the merits of the WOTUS rule. Section 509 of the Clean Water Act provides that the circuit courts have jurisdiction over challenges regarding “any effluent limitation or other limitation” and issues related to permit approvals and/or denials. See 33 U.S.C. 1369(b). All other challenges are to be heard in the district courts.

Historically, parties opposed to the WOTUS rule have argued that jurisdiction should properly be had in the district courts; however, the Trump administration’s recent proposed rule to rescind the WOTUS rule has complicated that position. If the Supreme Court were to reverse the Sixth Circuit’s decision and hold that jurisdiction is proper in the district courts before the Trump administration can successfully rescind the rule, then most likely the Sixth Circuit’s current stay of the rule would dissolve, and the rule would go into effect as is until either judicial, administrative, or other legislative action takes on the rule.

As to possible forthcoming administrative actions, President Trump’s February 28, 2017 Executive Order directed the EPA Administrator and Assistant Secretary of the Army for Civil Works to review the WOTUS rule. The order also specifically directed the agencies in their review to “consider” interpreting the definition of the term “navigable waters” in a “manner consistent” with the late Justice Scalia’s opinion in Rapanos v. United States (2006). In Rapanos, Justice Scalia defined the phrase “waters of the United States” as “includ[ing] only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes.’” Scalia made clear he did not believe the term included “channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” The President’s directive to the Agencies to rely on Justice Scalia’s definition from Rapanos, however, will have to overcome the Agencies’ historical reliance on Justice Kennedy’s opinion from Rapanos. Justice Kennedy wrote in his opinion that the definition of “navigable water” had already been established in an earlier case, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001) (SWANCC), as whether a water possessed a “significant nexus” to water that were “navigable in fact or could reasonably be made so.”

The difference between the Scalia and Kennedy opinions form Rapanos is significant as to the merits of the case because they offer different limits on the types of waters the EPA and Army Corps may regulate under the Clean Water Act. Parties opposed to the new definition of “waters of the United States” prefer Scalia’s more limited view, thus decreasing regulatory reach. Proponents of the rule, however, argue that Kennedy’s interpretation aligns much closer with the goal of the Clean Water Act, in that allowing the agencies to regulate more types of waters allows them to fulfill the Act’s purpose, “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”

Accordingly, on March 6, 2017 EPA Administrator Scott Pruitt and Assistant Secretary of the Army for Civil Works Douglas Lamont published a joint notice on the agencies’ “Intention to Review and Rescind or Revise the Clean Water Rule.” On April 3, 2017, EPA Administrator Scott Pruitt put forth a two-step plan to rescind and replace the Waters of the United States Rule: “1) an initial rulemaking to rescind the 2015 rule and reinstate the regulatory approach that, except for a brief two-month period prior the 6th Circuit stay of that rule, has been the law in place since 1986 … and 2) promulgation of a revised definition of water of the U.S. consistent with direction in the February 28, 2017 [Executive Order].” On May 2, 2017, the EPA and Army Corps of Engineers filed a proposed regulation, “Definition of Waters of the United States – Recodification of Preexisting Rules,” with the Office of Information and Regulatory Affairs (OIRA) to begin step one of the process, rescinding the rule. On May 5, 2017, Administrator Pruitt signed a recusal statement removing himself from working on the Clean Water Rule, due to conflicts created by his previous position as the Oklahoma Attorney General in which he sued the EPA regarding the rule.

On June 27, 2017, Administrator Pruitt signed the proposed rule that would repeal the WOTUS rule. The proposed rule was accompanied only by a brief economic analysis maintaining the WOTUS rule’s previously calculated implementation costs, but reducing the benefits by 85 to 90 percent such that the benefits no longer outweighed the costs. Public comments were due by September 27, 2017. The EPA received over 190,000 comments on the proposed repeal of the rule.

As to possible forthcoming legislative actions, on September 14, 2017 the United States House of Representatives passed H.R. 3344,which would “[a]uthorize[] the Environmental Protection Agency and the Army Corps of Engineers to withdraw the Waters of the United States rule without regard to any provision of statute or regulation that establishes a requirement for withdrawal. (This provision applies to the final rule issued by the two agencies on June 29, 2015, and titled “Clean Water Rule: Definition of ‘Waters of the United States.'” The rule revised regulations defining the scope of waters protected and regulated under the Clean Water Act.).” Section 431 of the bill would effectively allow the EPA to rescind the WOTUS rule without notice-and-comment rulemaking, allowing the agency to side-step the task of addressing the 190,000 comments received on the proposed repeal.