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United States Supreme Court Tackles Key Clean Water Act Judicial Review Issue

National Association of Manufacturers v. Department of Defense, et al.

583 U.S. ____ (2018)

Decided January 22, 2018

Since the passing of the Clean Water Act in 1972, the definition of “the waters of the United States” has been a struggle for the EPA and the US Army Corps of Engineers to define and apply. The statute has little guidance on the definition, and attempts at delineating what constitutes “the waters of the United States” and therefore subject to the Clean Water Act are always followed by judicial challenges.

In 2015, the EPA and the Army Corps promulgated what is known as the WOTUS Rule, which was intended to provide a simpler, clearer, and more consistent approach for identifying the geographic scope of the Clean Water Act. The WOTUS Rule separated waters into three jurisdictional groups: (1) waters that were categorically included, (2) waters that required a case-specific analysis based on the significant nexus test, and (3) waters that are excluded from the Clean Water Act. Although the WOTUS Rule revised the regulatory definition of “the waters of the United States,” the rule itself stated that it does not impose any enforceable duty on any state, local, tribal governments, or the private sector. 80 Fed. Reg. 37102. Instead, the preamble states that it is “a definitional rule that clarifies the scope of” the term “waters of the United States”. Id. At 37054. Without fail, the WOTUS Rule was immediately challenged by parties in both Federal District Court and the Federal Court of Appeals.

Under the Clean Water Act, there are two different ways to obtain judicial review of EPA actions with different procedural provisions and statues of limitations. For certain actions challenging agency actions, as enumerated at 33 U.S.C. §1369(b)(1), the Clean Water Act grants the Federal Courts of Appeals original and exclusive jurisdiction. Decker v. Northwest Environmental Defense Center, 568 U.S. 597, 608 (2013). Any challenges pursuant to this section must be filed within 120 days after the date of the challenged action, and must be filed in the district where the party resides or transacts business which is affected by the challenged action. The second avenue to bring a challenge is for any final EPA actions outside those enumerated in §1369(b)(1). These challenges are governed by the Administrative Procedures Act, and are filed in a Federal District Court within six years.

The uncertainty around the scope of the WOTUS Rule and interaction with the two avenues of judicial review led to the multiple filings in both the District Court and the Courts of Appeals. The Government argued that the Rule fell within the enumerated actions under §1369(b)(1), and therefore was required to be brought in the Federal Courts of Appeals. Meanwhile, Petitioner National Association of Manufacturers argued that the WOTUS Rule was a final EPA action that was subject to challenge in a federal district court. The Sixth Circuit sided with the Government in a fractured opinion and denied Petitioner’s Motion to Dismiss for Lack of Jurisdiction, and the United States Supreme Court granted certiorari.

The Government’s argument relied on subparagraphs (E) and (F) of §1369(b)(1), which gives the Court of Appeals original and exclusive jurisdiction on an action by the EPA Administrator: in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345; or in issuing or denying any NPDES permit.

The Government first contended that the WOTUS Rule qualified as an action promulgating or approving an “other limitation” as it established geographic scope of limitations. While the Clean Water Act does not provide any express definition of “other limitation”, the Court looked at the text and structure of subparagraph (E) and determined it was not as broad as the Government argued. The Court reasoned that read altogether, the phrase “any effluent limitation or other limitation” suggests that “other limitation” must also be related to effluents, or in other words the discharge of pollutants. The Court found this to be reinforced by the fact that subparagraph (E) cross-references §§ 1311, 1312, 1316, and 1345, all of which impose restrictions on the discharge of certain pollutants. As the WOTUS Rule does not restrict the discharge of pollutants, the Court found that subparagraph (E) did not apply.

The Government also argued that the WOTUS Rule defined the geographical bounds of EPA’s permitting authority and therefore fell under subparagraph (F). The Court did not find this persuasive, as the express language of the statute states “in issuing or denying any permit” and the WOTUS Rule neither issues nor denies a permit. While the Government argued that the court should use a “functional interpretive approach” to broaden the scope of the language to cover any agency action that related to the approval or denial of a permit, the Court did not find that persuasive. Instead, the Court noted that Congress could have chosen to make the language more broad, but intentionally did not do so.

Finally, the Government made several policy arguments as to why the WOTUS Rule should be first reviewed by the Circuit of Appeals, some of which the Court admitted made logical sense. However, the Court ultimately held firm to the express language of the statute. The Supreme Court reversed the judgment of the Court of Appeals and remanded the case with instructions to dismiss the petitions for lack of jurisdiction.

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