Update on “Waters of the United States” Litigation


The “WOTUS” rule, EPA’s and the Army Corps of Engineers’ rule re-defining Waters of the United States under the Clean Water Act has been challenged by environmental groups — including Upper Missouri Waterkeeper, the Waterkeeper Alliance, other individual Waterkeeper organizations, NRDC, National Wildlife Federation, Earthjustice and others — industry and states in a variety of federal district courts and federal circuit courts of appeal around the country.  Some of the plaintiffs filed in two courts due to uncertainty as to whether the district courts or the circuit courts have jurisdiction.

All of the cases in the circuit courts were consolidated in the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, which was chosen at random.  But there is no automatic consolidation process for the district courts.  EPA asked a federal judicial panel to exercise its discretion to consolidate them in Washington, DC, but the panel declined that request.  Thus, all the district court cases are still in the courts that the plaintiffs chose to file them.  The two cases filed by Waterkeepers are in the Northern District of California (Upper Missouri Waterkeeper, Waterkeeper Alliance, Humboldt Baykeeper, Russina Riverkeeper, Monterey Coastkeeper and Snake River Waterkeeper) and the Western District of Washington state (Puget Soundkeeper Alliance).

In August, a federal judge in North Dakota issued a preliminary injunction in a case filed by 13 states.  His injunction, which temporarily freezes the new rule, applies only in those 13 states. Thus, for more than a month, there was one definition of WOTUS in 13 states (the pre-2015 version) and another definition in the other 37 states and US territories (the new 2015 version).

In October, the Sixth Circuit in Cincinnati issued a similar injunction, but this one applies across the US.  Thus, the pre-2015 definition of WOTUS is back in effect everywhere.  The new rule is on hold.

The next step is for the Sixth Circuit to decide if it has jurisdiction.

We expect more procedural twists and turns before the courts get to the meat of the case and decide whether and to what extent the WOTUS rule is lawful or should be sent back to the agencies.