In our Spring and Fall 2015 and Spring 2017 Newsletters, we predicted a growing morass of litigation challenging the EPA and Army Corps’ Clean Water Rule (the Rule) on the scope of jurisdictional Waters of the United States (WOTUS). In 2015, President Obama, the EPA and the Corps issued a Rule (the 2015 Rule) that sought to codify existing criteria that EPA and the Corps had been applying on a case-by-case basis, using the three alternative tests announced by the Supreme Court of the United States (SCOTUS) in Rapanos v. United States, 547 U.S. 715 (2006). A flood of litigation resulted. Even before the 2015 Rule was to take effect on August 28, 2015, 27 states filed federal lawsuits. On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed the 2015 Rule nationwide and agreed with the federal government that the 2015 Rule was reviewable exclusively in the circuit court of appeals. SCOTUS agreed to decide the narrow jurisdictional issue.
In January 2018, SCOTUS issued a decision in Nationwide Association of Manufacturers v. Department of Defense, 138 S. Ct. 617 (2018), authored by Justice Sotomayor, which ruled that the appropriate forum for challenging the 2015 Rule is a federal district court. SCOTUS reversed the Sixth Circuit and remanded with instructions to dismiss the petitions for lack of jurisdiction, and to vacate the nationwide injunction against the 2015 Rule.
President Trump in 2017 issued an Executive Order directing EPA and the Corps to vacate the 2015 Rule. In February 2018, EPA and the Corps finalized a Rule (the 2018 Rule) that mirrors Justice Scalia’s opinion in Rapanos and delayed implementation until 2020. Two district courts found the rulemaking to be arbitrary and capricious because EPA and the Corps issued the 2018 Rule without seeking meaningful public comment, and issued nationwide injunctions. Three more district courts issued preliminary injunctions barring the use of the 2018 Rule in 28 states, because the POTUS agencies exceeded their authority under the Clean Water Act. As a result of the federal court rulings, the 2015 Rule is still effective in 22 states, including Massachusetts.
It will take another decade before there is a Final Rule on the scope of jurisdictional waters of the United States for future permitting of activities in wetlands and on adjacent lands, and enforcement actions under the CWA by EPA, the Corps and environmental groups. The years will be marred by the inevitable rulemaking hijinks, and federal lawsuits challenging the rulemaking procedures and the substance of any proposed new Rule. An enlightened and unified Congress could amend the CWA to better define the geographic and regulatory scope of WOTUS. Without a Final Rule, decisions on proposed projects will continue on a case-by-case basis, using the three alternative tests announced in Rapanos, EPA and Corps guidance documents, criteria in a draft Rule, and Massachusetts practice and precedent. Developers and landowners will need environmental lawyers and engineers who are immersed in the turbulent WOTUS.