In National Association of Manufacturers v Department of Defense, 2018 WL 491526 (2018), the Supreme Court reversed a decision of the Sixth Circuit Court of Appeals regarding which courts should hear challenges to the Waters of the United States rule issued by EPA and the Army Corps of Engineers, leaving the scope of Clean Water Act wetlands regulation unclear.
The definition of the statutory phrase “waters of the United States” has a long and difficult history. The Supreme Court has twice rejected regulatory attempts to define the scope of the federal government’s authority to regulate waters, most recently in Rapanos v United States, 547 U.S. 715 (2006). The new rule, referred to as the rule was challenged in federal district courts and federal courts of appeals and thus, before the challenges could proceed, it was necessary to decide which courts have jurisdiction over the challenges. The appellate changes were all sent to the Sixth Circuit Court of Appeals by the Judicial Panel on Multidistrict Litigation. The Sixth Circuit issued a stay of enforcement of the rule while the challenges are pending, then decided that the appropriate forum for the challenges was the federal courts of appeals and not the district courts. In a decision issued on January 22, 2018, the Supreme Court reversed; sending the issue to the district courts.
Without going into the issues of statutory interpretation behind the Court’s ruling, the ruling is certain to increase the amount of time it will take for the substance of the challenges to work their way back to the Supreme Court. The definition of waters of the United States is important for the regulation of wetlands because the Army Corps of Engineers has used a broad definition of waters to support the exercise of broad jurisdiction over wetlands. Twice the Supreme Court has told the Army Corps that it was attempting to regulate more than Congress gave it the power to regulate. The result of this recent decision will leave the definition unsettled for the foreseeable future.