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Up to the Minute Synopsis of Clean Water Act Jurisdiction Developments

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by Michael C. Ford

Keeping track of the ongoing administrative and judicial developments on the issue of Clean Water Act jurisdiction has become almost as complex as trying to make a jurisdictional determination itself. Here is a handy synopsis of the key dates and developments (as of this morning!)

June 29, 2015.  The Environmental Protection Agency and the Department of the Army (“Agencies”) promulgate “Clean Water Rule: Definition of ‘Waters of the United States’” (“2015 Revision”) amending the key jurisdictional provisions defining the Agencies’ authority under the Clean Water Act (“CWA”).  (80 FR 37054).

August 27, 2015.  The District Court for North Dakota issues a preliminary injunction against the 2015 Revision applicability in 13 states (North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, and New Mexico).  (State of North Dakota, et al. v. US EPA, No. 15-00059, slip op. at 1-2 (D.N.D. Aug. 27, 2015, as clarified by Order issued on September 4, 2015)).

August 28, 2015.  Original effective date of the 2015 Revision.

October 9, 2015.  The Sixth Circuit Court of Appeals stays the 2015 Revision nationwide.  (In re U.S. Dep’t. of Def. and U.S. Envtl. Protection Agency Final Rule: Clean Water Rule, No. 15-3751 (lead), slip op. at 6.)

January 13, 2017.  The U.S. Supreme Court Grants certiorari on the issue of whether the federal appellate or district courts have jurisdiction to hear the challenges to the 2015 Revision.

February 28, 2017.  President Trump Issues Executive Order 13778, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule,” directing the Agencies to review the 2015 Revision for consistency with the priorities of ensuring that the nation’s navigable waters are kept free from pollution, promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.  The Executive Order also directs the Agencies to publish a proposed rule rescinding or revising the 2015 Revision, as appropriate, and directs the Agencies to consider interpreting the term “navigable waters” (“waters of the United States”)  in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006), wherein Justice Scalia defines CWA jurisdiction as including relatively permanent waters and wetlands with a continuous surface connection to relatively permanent waters.

July 27, 2017.  The Agencies propose a rule to rescind the 2015 Revision and to recodify the previous definition of “waters of the United States” under a two-step process to review and revise the definition of “waters of the United States” consistent with the Executive Order. (82 F.R. 34899). 

August 28, 2017.  The Agencies announce a series of teleconferences and an opportunity to submit written comments prior to the Agencies proposing a revised definition of “waters of the United States,” running through November 2017.

September 27, 2017.  The comment period closes on the Agencies’ first step proposal to recodify the pre-2015 Revision CWA jurisdiction definitions.

October 11, 2017.  The Supreme Court hears oral argument on the judicial jurisdiction issue, not to be confused with the CWA jurisdiction issue (whether appellate or district courts have jurisdiction to hear challenges to the 2015 Revision).

November 16, 2017. The Agencies sign a proposed rule to amend the effective date of the 2015 Revision to a date two years from the date this proposal is finalized (Federal Register publication forthcoming).  The purpose of this proposal is to assure that the pre-2015 Revision regulations remain in effect pending development of a new revised rule, regardless of what may happen with the various pending court challenges.  The Supreme Court’s decision on the court jurisdiction issue could come any day, and could upset the Sixth Circuit’s stay on the 2015 Revision and cause further confusion (if that’s possible) as to which set of regulations/guidance/court decisions currently apply to determine a water’s jurisdictional status under the CWA.

One thing is certain: this synopsis will not be accurate for very long.  Be on the lookout for a decision from the Supreme Court, the close of the comment period on the Agencies’ pre-publication solicitations of comments on revisions to the “waters of the United States” definition (November 28, 2017) and a short comment period (21 days from publication in the Federal Register) on the forthcoming proposal to extend the effective date of the 2015 Revision for several years.  Considering this latest proposal, it looks like the real action on clarifying CWA jurisdiction will take place in 2018, when the Agencies propose their “water of the United States” revisions, and open another public comment period.