In early 2017, the U.S. Supreme Court agreed to resolve jurisdictional wrangling over which federal court should hear challenges to the Environmental Protection Agency’s contentious 2015 Waters of the U.S. (WOTUS) rule. That rule sought to clarify the definition of “navigable waters” in the Clean Water Act (CWA). Earlier this month, the nation’s highest court heard arguments over which lower court—U.S. federal appeals courts or district courts—would handle challenges to the rule.
A torrent of federal litigation ensued after the Obama administration finalized the rule. Thirty-one states, many local governments, and private industry filed suit against the U.S. EPA and Army Corps of Engineers in the Sixth Circuit Court of Appeals asserting that the rule unconstitutionally expanded the CWA’s reach and misapplied Justice Anthony Kennedy’s “significant nexus” opinion in the 2006 Rapanos case.
Wetland and water scientists actively involved in research and teaching about fresh and estuarine waters filed an amicus brief in support of the Clean Water Rule. The brief provided scientific support for the rule by describing how wetlands, streams, and adjacent waters significantly affect the chemical, physical, and biological integrity of traditional navigable waters, interstate waters, and the territorial seas. The brief was endorsed by AFS and six other scientific societies.
The Supreme Court's decision on the jurisdictional issue will determine where challenges to future Clean Water Act rules play out. The choice of court also affects the resources needed to litigate the merits of challenges, sets the statute of limitations for filing lawsuits, and helps determine whether actions can be challenged in subsequent civil or criminal proceedings. The issue is likely to re-occur despite the Trump Administration’s efforts to repeal the WOTUS rule. The Trump Administration has indicated that it plans to replace the rule before the end of the year with one in keeping with Justice Scalia’s interpretation of “navigable waters” in the Rapanos decision, a move that has environmental groups preparing for new legal battles over a rule many fear will reverse protections for wetlands and headwater streams.
AFS, and its partners in the Consortium of Aquatic Science Societies (CASS), will continue to engage with the Trump Administration as it moves forward in repealing and replacing the Clean Water Rule to ensure that the value wetlands and headwater streams is considered. Comments on the proposed replacement are due by November 27.