To better understand the latest developments regarding the Clean Water Rule (CWR), let’s look at a brief summary of its development and current status.
The rule-making process for the CWR was started in response to requests by the public to replace the 2008 guidance (post-Rapanos 2006 court case instruction on how to implement the court decision) with clearer regulations that would provide certainty on the definition of waters protected by the Clean Water Act. And the purpose of the Clean Water Rule was “to provide a simpler, clearer and more consistent approach to determining jurisdictional status of waters, based upon science, the agencies’ expertise and experience, and Supreme Court decisions.”
The rule-making process for the CWR was started in response to requests by the public to replace the 2008 guidance (post-Rapanos 2006 court case instruction on how to implement the court decision) with clearer regulations that would provide certainty on the definition of waters protected by the Clean Water Act. And the purpose of the Clean Water Rule was “to provide a simpler, clearer and more consistent approach to determining jurisdictional status of waters, based upon science, the agencies’ expertise and experience, and Supreme Court decisions.”
 | The rule-making process was a two-year nationwide effort which garnered over 1 million public comments, and during the process, the EPA developed two informative reports: the EPA Economic Report (looked at the administrative costs to the Corps of Engineers in implementing the new rule) and |
the EPA Connectivity Report (a review of 1,200 peer-reviewed publications to scientifically determine the connectivity of water between streams and wetlands in a watershed).
The rule produced a definition of WOTUS in three basic categories:
1. waters that are jurisdictional in all instances,
2. waters that require case-by-case significant nexus analysis*, and
3. waters with regulatory exclusions.
Once the rule was published**, plaintiffs immediately filed suits against the EPA and Department of Defense. These plaintiffs were businesses, states, and environmental groups. Of the 18 district court complaints, the U.S. Department of Justice made the unusual motion to consolidate all complaints, but the motion was denied on October 13, 2015, by the Judicial Panel on Multidistrict Litigation (composed of 9 district court judges). Most of the complaints were dismissed. One court, the North Dakota District Court, issued a Preliminary Injunction (stay) which eventually only applied to the 13 states that were plaintiffs in that district court case.
The rule produced a definition of WOTUS in three basic categories:
1. waters that are jurisdictional in all instances,
2. waters that require case-by-case significant nexus analysis*, and
3. waters with regulatory exclusions.
Once the rule was published**, plaintiffs immediately filed suits against the EPA and Department of Defense. These plaintiffs were businesses, states, and environmental groups. Of the 18 district court complaints, the U.S. Department of Justice made the unusual motion to consolidate all complaints, but the motion was denied on October 13, 2015, by the Judicial Panel on Multidistrict Litigation (composed of 9 district court judges). Most of the complaints were dismissed. One court, the North Dakota District Court, issued a Preliminary Injunction (stay) which eventually only applied to the 13 states that were plaintiffs in that district court case.
| In the U.S. courts of appeals, the same 100 petitioners filed suits against the EPA and Department of Defense. By statute (law), these cases were consolidated in the 6th Circuit Court of Appeals*** and the 6th Circuit issued a CWR stay on October 9, 2015. The 6th Circuit also ruled that it had the jurisdictional authority |  |
to declare the nationwide stay in a highly controversial and fractured decision (1:1:1) on February 22, 2016. A request for rehearing the jurisdictional determination of the 6th Circuit by all the judges of the court (called an “en banc” review) was denied on April 21, 2016.
The petitioners of the consolidated cases in the 6th Circuit were divided into four major groups: 2 different environmental groups, 1 business group, and 1 group containing all the petitioning states. Four sets of opening briefs challenging the merits of the CWR were submitted to the 6th Circuit Court of Appeals on November 1, 2016 (292 pages). The Department of Justice answered with a 245-page**** responsive brief on January 13, 2017.
What happened next gets even more interesting! And, we are approaching the dates of the change in the Executive Branch of the United States – the Trump Administration (inaugurated January 20, 2017).
Stay tuned for part 2 of The Clean Water Rule in the Rearview Mirror.
-JMB
*Significant nexus analysis is determined by evaluating if any one of nine different aquatic functions are being significantly affected.
**For more details on the actual rule, see Wetlands Regulations 101 More on the CWR - a blog about the CWR details.
***Tennessee, Kentucky, Ohio, and Michigan comprise the 6th Circuit Court of Appeals.
****This very large brief size would usually represent about 5 separate cases of information.
Sources:
The Clean Water Rule Workshop presented at the Society of Wetland Scientists, South Central Chapter meeting, Memphis, TN, October 8, 2015.
Webinar: “What's Next for Clean Water Act Jurisdiction: Maintaining - or Draining - the Swamps? The Future of the Clean Water Rule”, Presented at ASWM’s 2017 Annual State/Tribal/Federal Coordination Meeting - Tuesday, April 11, 2017.
www.scotusblog.com Docket No. 16-299 National Association of Manufacturers v. Department of Defense
http://legal-dictionary.thefreedictionary.com
The petitioners of the consolidated cases in the 6th Circuit were divided into four major groups: 2 different environmental groups, 1 business group, and 1 group containing all the petitioning states. Four sets of opening briefs challenging the merits of the CWR were submitted to the 6th Circuit Court of Appeals on November 1, 2016 (292 pages). The Department of Justice answered with a 245-page**** responsive brief on January 13, 2017.
What happened next gets even more interesting! And, we are approaching the dates of the change in the Executive Branch of the United States – the Trump Administration (inaugurated January 20, 2017).
Stay tuned for part 2 of The Clean Water Rule in the Rearview Mirror.
-JMB
*Significant nexus analysis is determined by evaluating if any one of nine different aquatic functions are being significantly affected.
**For more details on the actual rule, see Wetlands Regulations 101 More on the CWR - a blog about the CWR details.
***Tennessee, Kentucky, Ohio, and Michigan comprise the 6th Circuit Court of Appeals.
****This very large brief size would usually represent about 5 separate cases of information.
Sources:
The Clean Water Rule Workshop presented at the Society of Wetland Scientists, South Central Chapter meeting, Memphis, TN, October 8, 2015.
Webinar: “What's Next for Clean Water Act Jurisdiction: Maintaining - or Draining - the Swamps? The Future of the Clean Water Rule”, Presented at ASWM’s 2017 Annual State/Tribal/Federal Coordination Meeting - Tuesday, April 11, 2017.
www.scotusblog.com Docket No. 16-299 National Association of Manufacturers v. Department of Defense
http://legal-dictionary.thefreedictionary.com
RSS Feed
