On January 22, as Philadelphia Eagles fans continued to celebrate the team’s NFC Championship victory over the Minnesota Vikings, the U.S. Supreme Court was busy issuing a unanimous opinion in National Association of Manufacturers v. Department of Defense concerning the Waters of the United States Rule (“Rule”) promulgated by the Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“Corps”) in 2015. The Rule defines the statutory term “waters of the United States” in the Clean Water Act, and has been subject to appeals in both federal district courts and courts of appeals. On October 11, 2017, the Supreme Court heard oral argument addressing whether appeals of the Rule should be filed first in either the district court or the court of appeals, and held today that because the Rule does not fall within one of the Clean Water Act’s (“Act”) seven enumerated categories of EPA actions for which the courts of appeal have jurisdiction, appeals of the Rule must first proceed in district court.

The statutory term “waters of the United States” delineates the geographic reach of the National Pollutant Discharge Elimination System (“NPDES”) program and the authorization of discharges of dredged or fill material. In responding to the need to further clarify the geographic reach of these programs, EPA and the Corps published the Rule. 80 Fed. Reg. 37054. The Rule categorized waters into three jurisdictional groups—waters that by rule are jurisdictional (e.g., interstate waters); waters that require a case-specific showing of their significant nexus to traditional covered waters (e.g., waters lying in the flood plain of interstate waters); and those that are by rule excluded from jurisdiction (e.g., swimming pools and puddles). The Rule’s preamble expressly stated that it is a definitional rule clarifying the term “waters of the United States,” and does not impose additional requirements.

Challengers to the Rule filed appeals in a number of district courts and protective appeals in the courts of appeal. The procedural issue faced by the challengers was whether the Rule fell within one of seven categories of EPA action, to which the Act grants the federal courts of appeal original and exclusive jurisdiction. 33 U.S.C. § 1369(b)(1). All other appeals outside of those seven categories are typically governed by the Administrative Procedure Act, which directs appeals of final agency actions to district courts. The Government, which argued that the courts of appeal should have jurisdiction, argued in part that the Rule falls into the category of actions “approving or promulgating any effluent limitation or other limitation under [certain sections of the Act].” 33 U.S.C. § 1369(b)(1)(E). The Supreme Court determined that the Rule was not an “other limitation” similar to an effluent limitation, but rather a Rule further clarifying the meaning of a statutory term. Thus, the Rule is properly challenged initially at the district court level.

Despite challenges to the Rule, the current administration proposed a rule in November 2017 which sets a new effective date of the Rule of “two years from the date of final action on [the agencies’] proposal,” to “ensure that there is sufficient time for the regulatory process for reconsidering the definition of ‘waters of the United States’ to be fully completed.” 82 Fed. Reg. 55542. Accordingly, the Rule has not gone into effect yet, and if upheld, will likely not be implemented anytime soon.

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