Many of us have followed the controversial Waters of the U.S. (WOTUS) rule published by the Environmental Protection Agency and the U.S. Army Corps of Engineers. The rule amends the definition of “waters” in ways that (as reported in the Federal Register) further the two agencies’ stated intention to make the scope of the Clean Water Act (CWA) “easier to under-stand, more predictable and consistent with the law and peer-reviewed science.”
The EPA and the Corps of Engineers ostensibly wrote the rule in response to several cases questioning the agencies’ juris-diction by challenging the definition of “navigable waters” and adjacent wetlands in the CWA. The EPA and the Corps issued a proposed rule they argued would bring “clarity” and “efficiency” to determining the coverage of the CWA.
After an extended period for comments from the public, the WOTUS rule was issued in June 2015. The rule has proven to be one of the most controversial regulatory developments in recent years. Instead of simply clarifying the jurisdictional reach of the CWA, the rule has been viewed by agriculture groups as expanding it—pushing the regulatory reach beyond the banks of streams that are navigable-in-fact into areas viewed by many to be far from what is reasonable and intended under the CWA.
Many challenges were filed immediately after the rule was issued. Eighteen states challenged the validity of the rule on the grounds the jurisdiction of the EPA and the Corps doesn’t extend to waterways that aren’t navigable-in-fact.
The case immediately became entwined in a complex but important legal battle about where the case should be heard. The challenging states filed cases in the U.S. District Courts of various states. The EPA and the Corps took the position that the dispute was one of a narrow category of cases in which jurisdiction lies in the U.S. Courts of Appeal, which are just below the U.S. Supreme Court. The cases in the District Courts were consolidated in the Sixth Circuit Court of Appeals, which covers Kentucky, Michigan, Ohio and Tennessee. In February of 2016, the Sixth Circuit ruled jurisdiction in the cases does in fact lie in the federal appellate courts.
The rule has also been challenged in Congress, but no legislative solution appears to have the votes to override an expected veto by President Barack Obama. Legislative challenges are certain to continue after the presidential election and after a new president is inaugurated.
The coming substantive ruling by the Sixth Circuit will undoubtedly be only the next step in a long legal and legislative fight over the federal government’s reach in controlling the use of private property. The potentially expansive jurisdiction sought by the EPA and the Corps could have a significant and even determinative impact on those who own and operate land with wetlands, waters and streams that ultimately flow into traditionally navigable streams.
Robert (Bob) Thompson is a partner with international law firm Bryan Cave. He focuses on complex commercial business litigation in both state and federal courts throughout the U.S. He is co-leader of the Food and Agribusiness Industry Group and is a member of the firm’s executive committee.
Note: This story appeared in the October 2016 issue of Drovers.