Setting The Stage For Next Phase Of Clean Water Rule Suits
By John Cruden, Parker Moore and Andrew Silton (January 24, 2018, 3:32 PM EST) -- Earlier this week, the U.S. Supreme Court issued its decision in National Association of Manufacturers v. U.S. Department of Defense, No. 16-299, holding that federal courts of appeals lack jurisdiction to hear challenges to the 2015 rule amending the Clean Water Act's (CWA) definition of "waters of the United States," 80 Fed. Reg. 37054 (Jun. 29, 2015) (the WOTUS rule). The unanimous court, relying on the plain meaning and structure of the CWA's judicial review provisions, concluded that the WOTUS rule was not a type of U.S. Environmental Protection Agency action subject to review by the federal courts of appeals under CWA Section 509(b)(1). Challenges to the WOTUS rule — or any other rule revising the definition of "waters of the United States" — belong, in the first instance, in district court....
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