The controversial Waters of the United States (WOTUS) Rule, promulgated under the Obama Administration, will have its day in the U.S. Supreme Court, despite the Trump Administration’s efforts to stall that litigation while the rule is being revised by the new administration.

As previously discussed in this blog, the WOTUS Rule, also called the Clean Water Rule, was published by U.S. EPA and Army Corps of Engineers on June 29, 2015. The WOTUS Rule defines the scope of waters protected under the Clean Water Act (CWA). The CWA limits its jurisdiction to “navigable waters”, which are defined obliquely as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1361(7). U.S. EPA and the Army Corps of Engineers have attempted numerous times to define “waters of the United States”, and thereby define the jurisdictional scope of the CWA. Every such effort has been met with legal court challenges, with the previous definition being struck down by the U.S. Supreme Court in a plurality decision. Rapanos v. United States, 547 U.S. 715 (2006).

The 2015 WOTUS rule was challenged in court by numerous parties (including the State of Oklahoma, represented by then-Attorney General Scott Pruitt, who is now the Administrator of U.S. EPA) in several different venues, and the Sixth Circuit Court of Appeals decided that it had exclusive original jurisdiction under the CWA to hear the challenges in the case National Association of Manufacturers v. U.S. Department of Defense, et al., Case No. 15-3751. That threshold jurisdictional question (and not the substantive challenge to the WOTUS Rule) was appealed to the U.S. Supreme Court in September 2016 (Case No. 16-299). The U.S. Supreme Court accepted the appeal in January 2017, but the parties have not yet submitted their briefs.

On February 28, 2017, President Trump issued an Executive Order titled “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule”. The stated policy behind the Executive Order is that:

It is in the national interest to ensure that the Nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.

The Executive Order directs U.S. EPA and the Army Corps of Engineers to review the WOTUS Rule, and either rescind or revise the rule to define “Navigable Waters” in a manner consistent with the above-stated policy and the opinion of Justice Scalia in Rapanos. The executive Order also directs U.S. EPA and the Army Corps of Engineers to notify the Attorney General of the rule review so the Attorney General may inform the court in pending litigation and take actions as appropriate.

In accordance with the Executive Order, on March 6, 2017, the U.S. Department of Defense filed a motion to hold the briefing schedule in National Association of Manufacturers v. U.S. Department of Defense, et al. in abeyance. Several parties, including industry groups, environmental groups, and States, opposed the motion to hold the briefing schedule in abeyance. On April 3, 2017, the U.S. Supreme Court denied the federal government’s motion to hold the briefing schedule in abeyance.

Thus, the U.S. Supreme Court will decide whether the Sixth Circuit properly asserted exclusive jurisdiction over the challenges to the WOTUS Rule. Petitioner’s briefs are currently due on April 13, 2017, and the case will continue to be briefed over the next several months. Although the substance of the WOTUS Rule will most likely change per the direction in President Trump’s Executive Order, the jurisdiction for hearing future challenges will be determined by the U.S. Supreme Court, making the path of future litigation more clear.