Last week, the U.S. Supreme Court ruled unanimously in favor of the National Association of Manufacturers in their appeal urging the court to decide that challenges to the definition of Waters of the United States belong in federal district courts – the federal trial courts – rather than federal Courts of Appeal.
In 2015, the EPA and the Army Corps of Engineers adopted a new rule defining waters that are subject to the federal Clean Water Act, known as Waters of the United States or WOTUS. Challenges to the breadth of the new rule quickly followed and ultimately led to a stay from the U.S. Court of Appeals for the 6th circuit against implementation of the new rule. Many challenges to the new rule in district courts were stayed while the parties litigated whether the 6th Circuit had jurisdiction over the case.
The U.S. Supreme Court's WOTUS ruling means that the 6th Circuit does not have jurisdiction to stay the rule.
As a practical matter, this means the stay will be lifted and, at least in theory, the WOTUS rule could go into effect. The stay is expected to be lifted some time in February. Any such resurrection, however, is likely to be short-lived, if it occurs at all. Already, other U.S. Courts of Appeal – including the 11th Circuit that covers Florida – have sent cases challenging the rule back to district courts. A challenge in a district court could lead to a new stay being imposed. Indeed, before the 6th Circuit entered its stay, one federal district court in North Dakota had entered a stay covering 13 states.
If a new stay is not entered soon, the EPA expects to finish amending the effective date of the WOTUS rule so that it would not become effective for two years. That change to the effective date should occur in “early 2018” according to EPA, meaning the new WOTUS rule wouldn't become effective until 2020. The delayed effective date will allow time for the EPA to complete its two-step “repeal and replace” process. In step one, the EPA plans to repeal the 2015 rule and return to the previous rule. In step two, the EPA plans to develop a new rule to bring clarity to longstanding questions about coverage of the Clean Water Act. Litigation is expected to follow both steps.
Landowners, developers, farmers and others who regularly work on or around Florida wetlands should pay attention to this roller-coaster process as they consider submitting applications for federal Clean Water Act permits, especially those known as “404” permits submitted to the Army Corps of Engineers to ensure that their applications coincide with a time when the 2015 WOTUS rule is not in effect. In the long-term, the 2015 WOTUS rule seems unlikely to last, but last week’s ruling will create short-term uncertainty.
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Greg Munson is the former general counsel and deputy secretary for water policy at the Florida Department of Environmental Protection. Since 2013, he has been a shareholder practicing environmental law and government affairs at Gunster, working in Tallahassee, Florida.
