Olsson Associates


Navigating the Waters of the United States: No certainty on the horizon

Wednesday, February 21, 2018

Robert Parker, Environmental

The past month has seen substantial activity on the legal front stemming from several court cases challenging the waters of the United States (WOTUS) rule, also known as the 2015 Clean Water Rule. Running parallel to actions in the courts are the administration’s efforts to repeal and replace the rule, which intended to create a new legal definition for “navigable waters,” those waters that fall under the authority of the Clean Water Act (CWA). You might have read news stories on changes to WOTUS and were wondering how this affects your project.  Olsson Associates would like to offer an update, and short analysis, of how the regulatory environment has been affected by these court cases and what that means for our clients who may need a CWA Section 404 permit for impacts to wetlands and other waters.


In 2015, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) issued the Clean Water Rule, which attempted to remove much of the case-by-case analysis of what “waters” were regulated under the Clean Water Act by defining WOTUS.  However, many thought too many areas were included, and several lawsuits were filed in the federal courts.  These lawsuits were consolidated into a single case in the U.S. 6th Circuit Court of Appeals, which issued a nationwide stay of the rule while it considered the merits of the case. Before that could happen though, a lawsuit was filed by the National Association of Manufacturers (NAM) in the U.S. Supreme Court that questioned whether the federal appeals courts have jurisdiction under the CWA to issue the stay or determine the validity of the WOTUS rule.

2018 Supreme Court Decision

On January 22, the U.S. Supreme Court issued a unanimous ruling in favor of NAM, affirming that challenges to the WOTUS rule must be first heard in federal district courts. In this case, National Association of Manufacturers v. Department of Defense, NAM argued that the U.S. 6th Circuit Court of Appeals erred when it ruled that it has jurisdiction under the CWA to review the WOTUS rule. In the 9-0 ruling, the Supreme Court agreed with NAM, and stated that “Congress made clear [in the Clean Water Act] that rules like the WOTUS rule must be reviewed first in federal district courts.”

Implications of the Decision

Although the case was focused strictly on procedural matters and did not address the merits of the WOTUS rule itself, the court’s opinion will have widespread ramifications for the application of federal jurisdiction under the CWA. The Supreme Court’s decision required that the nationwide stay on the WOTUS rule issued by the U.S. 6th Circuit Court of Appeals be lifted within 28 days.

Lifting the stay would have the potential to put the rule into immediate effect in 37 states. The remaining 13 states are party to a separate suit filed in the U.S. District Court, District of North Dakota, which issued a preliminary injunction against the rule. The preliminary injunction could potentially be made permanent, or expanded to apply on a nationwide basis, as that case moves forward. However, new and revived litigation in other district courts would likely involve requests for injunctive relief on either a state-by-state basis or, although contrary to the administration’s position in other unrelated issues, a nationwide injunction. In other words, the definition of WOTUS could be different and conflicting in different states, depending on the rulings of multiple U.S. District Courts.

An Additional Rule and Lawsuits

Anticipating that the Clean Water Rule was about to go into effect but could be applied differently in different parts of the country, several days after the Supreme Court ruling the EPA and USACE promulgated a new rule titled Definition of "Waters of the United States" - Addition of an Applicability Date to 2015 Clean Water Rule (83 FR 5200), which delays the effective date of the 2015 WOTUS rule until 2020.

The “applicability date” was immediately challenged with two separate lawsuits filed in the U.S. District Court, Southern District of New York: one by the Natural Resources Defense Council (NRDC) and National Wildlife Federation (NWF), and the other by 10 states and the District of Columbia. Led by the Attorney General of New York, the states' lawsuit is joined by attorneys general from California, Connecticut, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia. Even more litigation was forthcoming within the week, including a counter-action spearheaded by the American Farm Bureau Federation, which sought to block the rule with a new nationwide injunction in case any of the U.S. District Courts ruled in favor of the “green” litigants.

This literally dizzying flurry of litigation has been occurring against the backdrop of the administration’s now year-long efforts to repeal and replace all or portions of the WOTUS rule through a two-step rulemaking process. The EPA and USACE are currently in the second part of this process, soliciting input from various stakeholder groups and the states as staff develops the final definitions and language for the new rule. An announcement of the results, likely appearing as a formal repeal of the 2015 WOTUS rule accompanied by a replacement rule, is expected later this spring.

Implications for Project Proponents

Where regulatory certainty is concerned, the Supreme Court decision did establish a clear and consistent pathway for litigation over the WOTUS rule. Selection of a forum for legal proceedings is an important consideration when resources are limited; that process will now begin in the U.S. District Courts and will move upward to the federal appeals courts when necessary. Consequently, the ultimate outcome for the WOTUS rule, and the resulting regulatory landscape that businesses must navigate, remains uncertain.

For the present, the guidance established by the 2008 EPA and USACE memo “Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v.United States”continues to be used to determine if a CWA Section 404 permit is required for activities in certain waters (such as fill in wetlands). However, none of the key elements of the 2008 memo have been codified and thus are open to broad interpretation by regulators and the courts. This current guidance is, in so many ways, a large part of what got us exactly to where we are now—after a decade of little actual change on the ground, regulatory certainty remains an elusive goal, caught up in a seemingly endless sea of modifications followed by litigation.

Olsson Associates will be tracking and researching the dynamic changes occurring with the WOTUS rule and will be working diligently to keep you informed with timely and accurate analysis. Please do not hesitate to contact us if you have questions about how your project may be affected in your state.

Please call Robert Parker at 402.458.5080 or email him at rparker@olssonassociates.com if you have any questions.

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