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Muddying the Waters on the Clean Water Rule

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Last week, the US Supreme Court made a unanimous ruling regarding the Clean Water Rule, also known as the Waters of the US, or WOTUS. Unfortunately, the decision doesn’t really settle much of anything; what it does do is clarify where challenges to the rule should be heard: in federal district courts.

The rule has had a long and contentious history. First proposed by EPA and the US Army Corps of Engineers under the Obama administration, the rule sought to clarify what is actually covered by the Clean Water Act. Earlier Supreme Court decisions had left some ambiguity about whether certain wetlands and ephemeral streams were covered. The government said this left 60% of streams and wetlands potentially unprotected. You can read a background summary here.

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Although EPA and the Corps of Engineers maintained that the Clean Water Rule only clarified, and did not extend, the scope of the Clean Water Act, many industry and agricultural groups opposed it. Several states filed protests even before it went into effect in 2015, and both houses of Congress at various points sought to block or rewrite it. Challenges to the rule involved dozens of legal actions around the country, some in federal district courts and some in appeals courts, and led to arguments over which courts actually should have jurisdiction. As this article explains, “The choice of court—district or appeals—is significant because it affects the resources needed to litigate the merits of challenges, sets the statute of limitations for filing lawsuits, and helps determine whether actions can be challenged in subsequent civil or criminal proceedings. District courts are also more tilted toward overturning government actions.”

The current administration has promised to eliminate the rule and took steps toward doing so last year. At issue now: the 6th US Circuit Court of Appeals issued a stay to the rule back in October 2015, and the Trump administration had counted on that stay remaining in place while it tried to repeal the rule. If, as the Supreme Court said this week, appeals courts don’t have jurisdiction here, that stay might be lifted.

Even if that happens, though, an earlier ruling by a federal judge in North Dakota issuing a temporary injunction against the rule in August 2015 could still stand; that injunction applies in the 13 states that had sued to block the rule—Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming—so even if the rule is back in effect everywhere else, it might still be blocked in those states.
The E&E News article quoted above goes into much greater detail about the implications of the Supreme Court’s ruling and possible next moves, such as a nationwide injunction by a district court. Stay tuned for more developments. SW_bug_web

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  1. The CWR was to take effect in 2017, with 80% of voters nationwide supporting the Rule – 77% of Republicans, 79% of Independents and 97% of Democrats. However, following EPA’s adoption of the CWR, several groups challenged this new definition of WOTUS in Federal court regardless of the overwhelming popular support for the Rule.

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