WOTUS Legal Challenges Update

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September 9, 2015

There are numerous pending lawsuits challenging the EPA and Corps of Engineers’ “Waters of the United States” (WOTUS) Rule.  The Rule took effect in thirty-seven states on August 28, 2015, after proceedings in three of these lawsuits.
The explanation lies in procedural intricacy.  Under the Clean Water Act (“CWA”), original jurisdiction to challenge a rule may lie either in a federal district court or the Circuit Court of Appeals depending upon whether the challenged rule has the precise effect of any action to “issue or deny a permit”¹ or whether it constitutes an “other limitation.”²
Three federal district courts issued decisions on motions to preliminarily enjoin enforcement of the new WOTUS Rule.  In two of the cases³, the federal district courts, interpreting the procedural language broadly, determined that original jurisdiction lies in the Circuit Court of Appeals.  Accordingly, on August 26 and 27, the district courts in the Northern District of West Virginia and the Southern District of Georgia, respectively, dismissed the lawsuits, which rendered the motions for preliminary injunctions moot.
The Judicial Panel on Multidistrict Litigation randomly selected the Sixth Circuit Court of Appeals to hear the WOTUS challenges.  It remains to be seen whether the decisions by the Southern District of Georgia and the Northern District of West Virginia will be appealed.  The Sixth Circuit will eventually hear the Georgia and West Virginia cases either under its original jurisdiction or as appeals from the district courts.
On August 27, 2015, the district court for the District of North Dakota, in contrast, interpreted the procedural provisions of the CWA narrowly and determined that original jurisdiction lies in the district court rather than in the court of appeals.  Further, the North Dakota district court granted the challengers’ preliminary injunction based upon the record before the court.
The North Dakota decision predicts that the categorical inclusion of tributaries under WOTUS is likely to fail Justice Kennedy’s “significant nexus” test because minor tributaries may have an insufficient nexus to traditional navigable waters.  The North Dakota decision identifies the lack of a rational basis between remote and intermittent waters and any nexus to traditional navigable waters.  The decision also notes the lack of a scientific basis for the 4,000-foot rule applied in case-specific determination under Section (a)(8).4
Finally, the North Dakota decision holds that the definition of “neighboring” is so expansive that it is not a “logical outgrowth” of the rule as it was initially proposed, which makes that definition procedurally deficient.  There is an important caveat, however, to the North Dakota decision:
While the court would prefer an opportunity to review the entire administrative record, rather than rely on a handful of documents and deliberative memoranda, it is impossible to obtain the record prior to the effective date of the Rule.  Under these unique circumstances, including a review of the Army Corps of Engineers’ memoranda, consideration of the documents in the record is “the only way there can be effective judicial review.”  (citation omitted)
It remains to be seen whether the North Dakota decision will be appealed.  For the time being the preliminary injunction against enforcement for the WOTUS rule is in place in North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, and New Mexico, i.e. the states that filed suit in the North Dakota litigation.  WOTUS is presently in effect in the remaining thirty-seven states, which includes Wisconsin.
For an excellent, incisive overview of WOTUS, I recommend reading “Waters of the United States”: A Mean-Spirited Guide” by Christopher D. Thomas, Esq. published in the ABA Section of Environment, Energy, and Resources Volume 30, Number 1, Summer 2015, pg. 32-35.

[1] 33 U.S.C. § 1369(b)(1)(F)

[2] 33 U.S.C. § 1369(b)(1)(E)

[3] Those pending in the Southern District of Georgia-Brunswick Division (State of Georgia, et al. v. Gina A. McCarthey, et al. cv 215-79) and the Northern District of West Virginia (Murray Energy Corporation v. United States Environmental Protection Agency (Civil Action No.1:15CV110)
[4] 33 C.F.R. § 328.3(a)(8)

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