It has been over two years since the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers published for comment the proposed rule defining the scope of waters protected by the Clean Water Act. Although it has been finalized, its implementation is, thankfully, on hold.

Nationwide stay of ‘Clean Water Rule’

For months following the rule’s publication for comment, EPA reassured stakeholders the final rule would not expand its authority to waterways and drainage features beyond those previously covered.

EPA and the Corps modified and published the rule, even changing its name to “The Clean Water Rule.” These changes failed to satisfy stakeholders and, more so, created further concern. As a result, it did not take long for the EPA and the Corps to find itself in court.

A lawsuit filed by 18 states asserted the rule did not follow guidance provided by the Supreme Court in the Rapanos case for determining jurisdictional waters. The court agreed with the states’ argument that the agencies failed to provide the public with a reasonable opportunity to comment on various aspects of the final rule. The Sixth Circuit Court of Appeals found the states “demonstrated a substantial possibility of success on the merits of their claims” and granted a motion for a nationwide stay of the final rule.


Fight over which court has jurisdiction

While it is certain that stakeholder groups will eventually have an opportunity to argue in court that the agencies have exceeded the authority Congress granted them in the Clean Water Act, the question now is which court has authority to hear the case. Stakeholders filing lawsuits are at odds with EPA and the Corps over this issue. Largely, stakeholders claim challenges to the rule should be heard in federal district courts. They point out the Clean Water Act itself establishes a scheme that grants original jurisdiction to the Court of Appeals only for a limited number of final agency actions.

Regrettably, in February 2016, a three-judge panel for the Sixth Circuit Court of Appeals concluded the court has jurisdiction to review the “Clean Water Rule.”

A failure to allow the district courts to participate departs from the customary progression of the federal court system and prevents the Court of Appeals from considering the merits of cases presented in the lower district courts. Although petitioning the Supreme Court to hear the jurisdictional argument is another option, a current Supreme Court Justice vacancy is a disturbing element. The best course may be to hope the current stay will remain in effect until an argument outlining the agencies jurisdictional overreach can be presented in court.