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Supreme Court determines WOTUS jurisdiction
Kirill Abbakumov   on Thursday, January 25, 2018 at 12:00:00 am

On January 22, 2018, the Supreme Court of the United States (SCOTUS) decided where the 2015 Waters of the United States (WOTUS) rule should be heard first in the court system. The nine justices ruled unanimously that federal district courts have jurisdiction, rather than the appeals courts. This potentially invalidates the nationwide stay issued by the 6th U.S. Circuit Court of Appeals in October 2015.

WOTUS is a term used in the Clean Water Act (CWA) to determine what waters and their conveyances fall under federal verses state permitting authority. In 2014, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) rewrote and expanded the WOTUS definition, finalizing the rule in 2015. Subsequently, lawsuits were filed in both appeals and district courts arguing that EPA and the Corps had overreached in their authority to regulate certain bodies of water. However, there was significant debate whether district or appeals court had the authority to hear the case, setting the stage for the recent SCOTUS decision.

Once the 6th Circuit Court of Appeals put a nationwide stay on the rule, it could not be implemented nationally until the stay is lifted. However, now that SCOTUS decided that the cases belong in the district courts, there is some confusion about how this decision will impact the nationwide stay.

The 6th Circuit is expected to lift the nationwide stay in the upcoming weeks. At this point, the 2015 rule would go into effect in 37 states, likely resulting in additional lawsuits in the district courts. The other 13 states – Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, North Dakota, South Dakota, Wyoming, and New Mexico – put the stay on the rule within their districts since 2015.

Anticipating a decision by SCOTUS, the Trump administration released a proposed rule late last year to delay implementation of the 2015 rule for two years. EPA estimates that this rule will be finalized in the next month. Concurrently, the Administration is working on an effort to withdraw the 2015 rule and recodify pre-existing regulations, while they work on a new WOTUS rewrite.