Clean Water Current

(January 23, 2018) – The U.S. Supreme Court issued a decision in National Association of Manufacturers (NAM) v. EPA on January 22, finding that litigation over the 2015 Clean Water Rule should proceed in the federal district courts, rather than in the U.S. Court of Appeals for the Sixth Circuit.  

The Rule, issued by the Obama Administration in an attempt to clarify the application of the Clean Water Act (CWA) to isolated streams and wetlands, was challenged by multiple parties in both federal district courts and appellate courts throughout the country.  The appellate cases were consolidated in the U.S. Court of Appeals for the Sixth Circuit, and the Supreme Court’s decision resolves the question of which court (or courts) have original jurisdiction over the challenge. 

EPA had argued that the case should be decided in the court of appeals as the equivalent of either an effluent limitation or permit issuance under CWA § 509, which provides jurisdiction over certain enumerated actions directly in the circuit courts.  The Supreme Court rejected this position, finding that the language of the statute clearly does not encompass rulemaking and that the Rule should instead be subject to review in the various districts courts under the Administrative Procedure Act.  This decision means that so long as the Rule remains in effect, it will likely be subject to multiple challenges throughout the country in various district courts. 

The decision also calls into question the application of a national stay of the Rule, issued by the Sixth Circuit, holding the Rule in abeyance while the court considered the merits.  Now that the Supreme Court has found that jurisdiction lies in the district courts, issuance of any similar orders would likely only apply at a local level.  In an effort to address this question, the Trump Administration issued a proposal in November 2017 to delay the effective date of the Rule.  The public comment period closed on December 31, 2017, but the proposal has yet to be finalized. 

Meanwhile, efforts to repeal and replace the Clean Water Rule have been ongoing, with a proposal to rescind the Rule put forth in July 2017 and comments closing in September 2017.  EPA also hosted a series of public meetings, including a session specifically for Stormwater, Wastewater, and Drinking Water Agencies, on November 14, 2017, in which NACWA participated.

NACWA will continue to track the efforts of the Trump Administration to draft a replacement for the Clean Water Rule, and to track any continuing litigation in the interim.