Waters of the United States (WOTUS)

The EPA’s new Clean Water Rule is dead in the water until further notice.  On October 9, 2015 the 6th Circuit Court of Appeals stayed the Clean Water Rule, nationwide, pending further order of the court.[1]  Ohio v. U.S. Army Corps of Eng’rs, Nos. 15-3799/3822/3853/3887 (6th Cir.  2015).  A North Dakota District Court Judge had previously enjoined the Rule in 13 states[2],  including Nebraska, as we discussed previously on Mostek Law.  In light of disparate rulings across the U.S., the court wanted to restore nationwide uniformity, the status quo ante, and the stay did just that.[3]

The Clean Water Rule is nicknamed “WOTUS,” short for “waters of the United States” rule.  The term comes from the federal Clean Water Act which grants the Environmental Protection Agency and the Army Corps of Engineers jurisdiction over “waters of the United States.” Once a body of water — be it river, creek, stream, lake, pond or prairie pothole — is determined to be a WOTUS, the federal agencies are able to apply the full panoply of federal water regulations.  The new rule sought to expand the jurisdiction of the Federal Government over a broader set of state sovereign waters.

Merits of the Claim

The 6th Circuit Court of Appeals applied the same test as the court in North Dakota v. U.S. EPA  to determine if the stay should be granted.  The court examined the likelihood of the States to prevail on the merits of their claims.  The States put forth two arguments.  First, the Rule’s definition of tributaries, adjacent waters and waters having a significant nexus to a Waters of the United States “is at odds with the Supreme Court’s ruling in Rapanos[4]”.[5]  In addition, the Rule’s procedures followed by EPA did not comply with the requirements of the rule making process prescribed by the Administrative Procedures Act.

The appellate court found Ohio and the other 17 states joined in the petition had a substantial likelihood of success on the merits of their claim.  In making the rule, EPA set a 4,000-foot distance limitation to determine if adjacent waters have a significant nexus to Waters of the United States, making them subject to federal control.  The court held it was unclear if the distance limitations were harmonious with the rule set forth in Rapanos. [6]

Further, the failure of the EPA to include the distance limitation for notice and comment by the public during promulgation was “facially suspect”.[7]  The distance requirements are not a “logical outgrowth” from the initial standards provided for public notice and comment.  Therefore, its inclusion in the Final Rule violated the notice and comment requirement of the federal rule making process.[8]

The court also found, the records provided by the EPA “devoid of specific scientific support” for inclusion of the distance limitations in the Rule.[9]  Without such support, it is hard to view the distance limitations as the “product of reasoned decision making,”[10] making the Rule vulnerable to the argument the distance limitations are arbitrary and capricious.  Thus, the court reasoned, the States have a substantial possibility of succeeding on the merits of their claim.

In large part, the court’s decision in Ohio v. U.S. Army Corps of Engineers mirrors the decision by the North Dakota District Court in North Dakota v. U.S. EPA.  In North Dakota, the court found the loss of sovereign waters and the monetary cost of completing jurisdictional studies for projects already in the development to be immediate unrecoverable harms.[11]

In contrast, however, the court in Ohio found the States did not make a compelling showing of immediate irreparable harm, so its analysis focused on balancing the potential harm to the litigants based on alternative rulings.  The court agreed with the federal agencies that a new rule is needed due to the “uncertainty, in spite of (or exacerbated by) a series of Supreme Court decisions over the last thirty years” surrounding the definition of “waters of the United States.”[12]  However, the court held, “the sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being.”[13]

Jurisdictional Issues

There has been almost as much confusion over jurisdictional questions as the confusion over the Rule itself.  Perhaps the court’s most interesting determination in Ohio was the decision to issue the stay without first determining if it had the jurisdiction to do so.[14]  The Constitution requires a court to have authority, granted by the constitution or a law, to hear a case before the court’s decision is binding on the parties.  For example, the tax code grants tax courts the authority to preside over tax controversies.

The issue is whether Congress granted the federal courts of appeal jurisdiction over the specific issues presented.  The Ohio court is requiring both sides to brief the jurisdictional issue for its review .[15]  If the court determines it does not have jurisdiction over the issue, the stay will be lifted and the states will have to refile their claims elsewhere, likely federal district court.

Two state district courts, in Georgia and West Virginia, held 33 U.S.C. § 1369 (b)(1) grants exclusive jurisdiction over the issue to the federal appellate courts.  The Federal District Court judge in North Dakota disagreed, finding the particular section of the CWA in questions assigns the courts of appeals jurisdiction over decisions setting “effluent limitations” or “decisions that are the functional equivalent of issuing or denying permit.”  In contrast, one of the primary attacks on the new EPA rule involves the authority it would grant the federal government over sovereign state waters which involves neither effluent limitations nor permit issuance or denial.[16]

The dissent in Ohio, cautioned it was imprudent for the court of appeals to grant the stay prior to determining if it had jurisdiction.  Judge Keith refused to evaluate the merits of the States’ motion because the issue of jurisdiction is a “threshold determination”.[17]  The majority disagreed stating it had clear authority, “to make orders to preserve the existing conditions of the subject of the petition pending our receipt and careful consideration of briefing on the jurisdictional question.”[18]

Injunctions and stays are temporary in nature.  However, it seems the determination of jurisdiction by the Ohio court will have interesting repercussions no matter the outcome. If the court determines it does not have jurisdiction the nationwide stay will be lifted.  Then, unless the EPA and Corps of Engineers have a “change of heart” the rule will go back into effect nationwide, except in the 13 States covered by the injunction issued in the North Dakota case.

If the court determines it does have jurisdiction, and that the Federal appellate courts have exclusive jurisdiction, the injunction granted by the district court in North Dakota will be called into question.  One possible outcome would have the North Dakota stay remain in effect until the 8th Circuit Court of Appeals makes a ruling.  Of course, there are other possible outcomes.

One thing is certain for now, the meaning of “waters of the United States” is no more clear than the day before the rule was issued.  The new WOTUS rule is dead in the water.  And, it seems both the North Dakota and Ohio courts made a well-reasoned analyses in concluding that the States have a substantial likelihood of prevailing on the merits.  If those rulings are any indication, the Rule will not be just dead in the water, it will be sunk.


How may we serve you?

Article by :  Amanda Lyon and Mike Mostek

Photo by:  Eva Blue

[1] Ohio v. U.S. Army Corps of Eng’rs Nos. 15-3799/3822/3853/3887 (6th Cir.  2015) (Order Of stay) available at: http://www.ca6.uscourts.gov/opinions.pdf/15a0246p-06.pdf.   Joining the State of Ohio as Petitioners in the case were Michigan, Tennessee, Oklahoma, Texas, Louisiana, Mississippi, Georgia, West Virginia, Alabama, Florida, Indian, Kansas, Kentucky, North Carolina, South Carolina, Utah and Wisconsin.
[2] No. 3:15-cv59, 2015 WL 5060744 (D.N.D. Aug. 27, 2015).
[3] Ohio, Nos. 15-3799/3822/3853/3887 at 6.
[4] Rapanos v. United States, 547 U.S. 715 (2006).
[5] Id at 4.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id at 5.
[11] North Dakota, No. 3:15-cv59, 2015 WL 5060744 at 13.
[12] Ohio, at 6 referencing (Rapanos v. United States, 547 U.S. 715 (2006); Solid Waste Agency of N. Cook Cty. V. U.S. Army Corps of Eng’rs, 531 U.S. 159(2001); United States v. Riversides Bayview Homes, Inc., 474 U.S. 121 (1985).
[13] Ohio, at 6.
[14] Id at 3, 4.
[15] Id at 4.
[16] North Dakota, at 3, 5.
[17] Ohio, at 7.
[18] Id at 4 (citing, United States v. United Mine Workers of Am., 330 U.S. 258, 291 (1947)).

Print Friendly, PDF & Email