WOTUS to Stay at SCOTUS

The Trump administration asked the Supreme Court to hold “in abeyance” litigation over whether a federal district court or a federal court of appeals has jurisdiction to rule whether the current 2015 Waters of the United States (WOTUS) definitional rule violates the Clean Water Act. On April 2 the Supreme Court denied the motion meaning the litigation will proceed.

President Trump’s February 28 executive order Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the "Waters of the United States" Rule calls for the “rescinding or revising” of the WOTUS rule. Many state and local governments objected to the broad nature of this rule, in particular to the expansive definition of ditches and the ambiguous definition of tributaries. 

The 2015 WOTUS rule is subject to complicated litigation. In October 2015 the Sixth Circuit issued a temporary stay of the rule preventing it from going into effect nationally. In February 2016 the Sixth Circuit ruled that it, rather than a federal district court, has jurisdiction to rule on whether the WOTUS rule exceeded the Clean Water Act.

In January 2017 the Supreme Court agreed to review the Sixth Circuit ruling that an appellate court not a district court has jurisdiction to rule on WOTUS. This case, National Association of Manufacturers v. Department of Defense, will not be heard until next fall 2017—meaning the Supreme Court may not issue an opinion in this case until as late as June 2018.    

The federal government asked the litigation before the Supreme Court to be temporarily halted because the 2015 WOTUS rule may be rescinded or revised per the Executive Order meaning the Sixth Circuit’s ruling it had jurisdiction “may ultimately have little significance for the Rule that is currently under review by the court of appeals.”

A number of parties and interveners who support the 2015 WOTUS rule objected. Conservation groups argued it is “quite unlikely that the detailed rule and technical record at issue could properly be reconsidered so quickly, and it would be inappropriate to prejudge the outcome of the deliberative process of notice-and-comment rulemaking that would apply to any such action.”

Per regular practice the Supreme Court did not explain why it denied the abeyance motion. That the motion was opposed and that the process to finalize new rules is lengthy (and hasn’t yet begun here) may have been factors. Also, the Supreme Court may be anxious to resolve the decade long confusion over federal court jurisdiction under the Clean Water Act, which would apply to future definitions of WOTUS—whatever they might be.