The Clean Water Rule was promulgated earlier this summer by the US EPA and Army Corps of Engineers to clarify federal jurisdiction over waters and wetlands in the wake of the Supreme Court’s 2006 Rapanos decision. For a detailed background on the Clean Water Rule and the regulatory and litigation history behind it, please refer to this paper by Maureen O'Sullivan, Wayne Law ’16, and Great Lakes Environmental Law Center Student Fellow. (The Clean Water Rule background paper was published in the 2015 annual update to our casebook, Environmental Law and Policy: Nature, Law, and Society, so I’ve made the excerpted paper available free online.)
To briefly summarize, the most contentious issue involved in the Clean Water Rule is the clarification of what waters have a “significant nexus” to navigable waters and are thus subject to federal regulation. The “significant nexus” phrase was coined by the Supreme Court in its Rapanos decision, but it has raised tremendous uncertainty and concern about the extent of federal regulation of wetlands and other inland waters.
Numerous states, including Michigan, have challenged the Clean Water Rule, opposing the federal government’s expansion of jurisdiction over intrastate waters. (Notably some states have supported the rule, as it helps bring clarity to an area of law with tremendous uncertainty.) The petitions, filed around the country, were consolidated before the Sixth Circuit, which has begun to hear arguments on both jurisdiction and the merits. However, in advance of a decision on the petitions, the Sixth Circuit has now issued a stay , blocking the Clean Water Rule pending the outcome of the litigation.
While not a final decision, the stay shows some of the key issues and concerns the Sixth Circuit has with the Clean Water Rule. First, the court has questions about the substance of the rule and its consistency with the Supreme Court’s Rapanos opinion. Procedurally, the court is concerned with the adequacy of notice for the final rule. The final rule contained a geographical limitation, which was not part of the proposed rule, and thus the public could not have anticipated the agencies’ final decision as a “logical outgrowth” of its proposal. Similarly, the court noted the lack of substantive evidence in the record to support the final rule’s geographical limitations.
The court’s ruling is a blow to the agencies and the Obama administration, but it is far from the last word on the matter. Judge Keith dissented, noting that even the foundational question of the court’s jurisdiction has yet to be decided. But for now, Rapanos will remain the law of the land and both the extent of federal jurisdiction over waters and the status of the Clean Water Rule are uncertain.
Update: The Judicial Panel on Multidistrict Litigation has declined to consolidate all of the other pending district court challenges to the Clean Water Rule, so expect more rulings and chaos on this issue as the federal courts sort out both jurisdiction and the merits.