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October 4, 2017

A key provision in the Clean Water Act (CWA) prevents discharge of pollutants into navigable waters, which is defined to be the “waters of the United States” (WOTUS). The WOTUS language is, therefore, a trigger for determining whether the Federal CWA will apply to many discharges, wetlands, and other activities.

In 2015, the EPA promulgated a rule that interpreted what WOTUS means and applied it to eight different types of categories of waters. Because of its broad, national impact, the regulation was almost immediately challenged in multiple lawsuits. The merits of those challenges have yet to be resolved because of a court jurisdictional dispute.

The National Association of Manufacturers v. Dep’t of Defense case, now pending in the Supreme Court of the U.S. (SCOTUS), will decide in which court the challenge to the WOTUS rule belongs.

Two types of EPA actions go directly to the Courts of Appeal:

  1. “approving or promulgating any effluent limitation or other limitation.”
  2. “issuing or denying [certain] permits.”

The challengers argue that the case belongs in the district court because the plain language of the jurisdiction-conferring statute does not apply. The federal government, however, says the case belongs in the Court of Appeals because the rule serves as a functional “limitation” by requiring some dischargers to get permits, and the Court should take a “pragmatic” view toward jurisdiction.

SCOTUS will hear oral argument in the WOTUS matter on October 11, 2017.

Contributed by Charles Denton and Mark Crandley, Law Partners with Barnes & Thornburg LLP.