Over the years, landowners challenging federal wetland determinations reached the Supreme Court of the United States. In 1985, deciding at which point “water ends and land begins,” the Supreme Court upheld a definition that included wetlands that “actually abut on” traditional navigable waters. In 2001, the Court held that “non-navigable, isolated, intrastate waters,” even those used by migratory birds, were not within the CWA. In 2006, ruling on whether the CWA included intrastate wetlands adjacent to non-navigable tributaries of navigable waters, the Court vacated the Corps’ rules. On behalf of a four judge plurality, Justice Scalia required a “continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” but Justice Kennedy, while concurring in striking down the rules, demanded “a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.”
In 2007, the EPA and the Corps responded to the Court’s rulings and in late 2008, after the receipt of 66,000 comments, issued new guidance on identifying “waters of the United States.” Then, in 2011, the two agencies proposed new guidance that expanded significantly the reach of the CWA, including over vernal pools, prairie potholes, natural ponds, and playa lakes. In response to 230,000 comments, many of which demanded a formal rule-making, the agencies issued that proposal in April of 2014.
On November 9, 2015, MSLF filed a complaint on behalf of AEMA asserting that the rules published on June 29, 2015, violate both the Regulatory Flexibility Act and the Administrative Procedure Act (APA). The rules violate the APA because they illegally: extend to all waters (not just wetlands) and all waters adjacent to non-navigable interstate waters; create a new jurisdictional concept “similarly situated waters” by misquoting the Supreme Court; and ignore the Court’s demand regarding alleged wetlands adjacent to non-navigable tributaries.
In light of the consolidation of petitions for review in the U.S. Court of Appeals for the Sixth Circuit, the federal government moved to transfer AEMA’s petition for review to the Sixth Circuit. AEMA did not oppose the transfer. On November 25, 2015, the D.C. Circuit ordered transfer to the Sixth Circuit.
On November 30, 2015, AEMA’s petition for review was docketed in the Sixth Circuit and was thus consolidated with 20 other actions that had motions to dismiss for lack of jurisdiction pending before the Sixth Circuit. On December 8, 2015, a Sixth Circuit panel heard oral argument on the motions to dismiss. Also, on December 8, 2015, the Natural Resources Defense Council, National Wildlife Federation, One Hundred Miles, and the South Carolina Coastal Conservation League moved to intervene as respondents, though these applicants had filed their own petitions for review pending before the Sixth Circuit. On December 15, 2015, the Sixth Circuit granted intervention. On December 30, 2015, the Puget Soundkeeper Alliance and the Sierra Club moved to intervene as respondents, though these applicants also had filed their own petition for review pending before the Sixth Circuit. On January 11, 2016, MSLF filed a response to the applicants’ motion to intervene, requesting that the Sixth Circuit limit their intervention; however, on January 20, 2016, the Sixth Circuit granted intervention with no conditions.
On February 22, 2016, the Sixth Circuit panel denied the motions to dismiss the petitions for review challenging the final rule defining “waters of the United States.” The panel’s decision was fractured into three separate opinions. In re: U.S. Dep’t of Def. & EPA Final Rule: Clean Water Rule: Definition of “Waters of the U.S.,” 817 F.3d 261, 263–74 (6th Cir. 2016) (McKeague, J.) (lead opinion) (holding that jurisdiction is proper before the Sixth Circuit); id. at 275–83 (Griffin, J, concurring in judgment) (concurring in the judgment only based upon Sixth Circuit precedent); id. at 283–84 (Keith, J., dissenting) (dissenting because the plain meaning of the statute does not confer original jurisdiction to the court of appeals). Importantly, Judge Griffin, who cast the deciding vote for jurisdiction, only did so because he felt compelled by binding Sixth Circuit precedent—not because the text of the statute conferred jurisdiction on the court of appeals. The Sixth Circuit panel’s opinion coupled with action before the courts demonstrates there is substantial uncertainty over whether the Sixth Circuit has jurisdiction. For instance, the U.S. District Court for the District of North Dakota held that jurisdiction was proper before the district courts, not the court of appeals. North Dakota v. EPA, 127 F. Supp. 3d 1047 (D.N.D. 2015). The jurisdictional issue has also been appealed in the Tenth and Eleventh Circuits, although the Eleventh Circuit has stayed the appeal pending before it in light of the Sixth Circuit panel’s decision.
Shortly after the panel’s ruling, some petitioners filed petitions for rehearing en banc. On April 1, 2016, the agencies filed their opposition to the petitions for rehearing en banc. On April 21, 2016, the Sixth Circuit denied the petitions for rehearing en banc.
On May 27, 2016, all parties submitted a joint briefing proposal. On June 14, 2016, the Sixth Circuit panel entered its second Case Management Order, which limited each set of petitioners (States, businesses and municipalities, and associational petitioners) to 21,000 words for their opening briefs. The Case Management Order set the schedule for any records motions and merits briefing. Briefing would end no sooner than February of 2017.
On July 8, 2016, all petitioners filed motions to complete the administrative record. Those motions were briefed fully on July 29, 2016. On September 21, 2016, the Business and Municipal Petitioners and the State Petitioners filed separate motions requesting the Sixth Circuit to hold briefing in abeyance, because the Sixth Circuit had yet to rule on the pending motions to complete the administrative record. On September 22, 2016, the Sixth Circuit granted the motions thereby holding briefing in abeyance.
On October 4, 2016, the Sixth Circuit issued an opinion and order regarding the administrative record. Petitioners’ motions to complete the record were granted in part and denied in part. The Agencies were ordered to include a redacted Technical Analysis with its appendix in the administrative record. The rest of Petitioners’ requests were denied.
On November 1, 2016, Business and Municipal Petitioners, and all other Petitioners, filed their initial proof briefs. On January 13, 2017, the agencies filed their response proof brief.
Meanwhile, on September 2, 2016, the National Association of Manufacturers (NAM), an intervenor-respondent in the Sixth Circuit proceedings, filed a petition for writ of certiorari. On January 13, 2017, the Supreme Court of the United States granted the petition. On April 26, 2017, MSLF filed its brief on behalf of the AEMA.
On March 6, 2017, the agencies filed a notice apprising the Sixth Circuit and the parties of the issuance of President Trump’s Executive Order directing the agencies to review the WOTUS Rule and to “publish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and consistent with law.” The agencies published such a notice in the Federal Register on March 6, 2017. 82 Fed. Reg. 12,532 (Mar. 6, 2017). On June 30, 2017, the agencies filed a notice apprising the Sixth Circuit that the agencies had signed a notice of proposed rulemaking titled “Definition of ‘Waters of the United States Recodification of Pre-existing Rules.” The agencies published this notice in the Federal Register on July 27, 2017. 82 Fed. Reg. 34,899 (July 27, 2017). This proposed rule seeks to repeal the WOTUS Rule and replace it with the previous definition of “waters of the United States.”
On January 22, 2018, the Supreme Court reversed the Sixth Circuit, which had held that federal courts of appeals alone had jurisdiction to decide the lawfulness of the rule, and remanded the case with instructions to dismiss the challenge for lack of jurisdiction. The Supreme Court held that that challenges to “wetland” determinations by federal agencies must be heard in first in federal trial courts.