Administrative litigation over Waters of the U S rule
Overview: Waters of the United States (WOTUS) Rule
The Clean Water Act (CWA) regulates discharges of pollutants into “waters of the United States,” but the precise meaning of “waters of the United States” has been contested.
The term defines the geographic scope of federal jurisdiction over waterways and wetlands.
The EPA and the U.S. Army Corps of Engineers jointly promulgated various WOTUS rules to clarify which waters fall under federal regulation.
The rules have generated significant litigation focused on environmental protection versus state/federal power limits and economic impact concerns.
Key Litigation and Cases on WOTUS
Case 1: Rapanos v. United States, 547 U.S. 715 (2006)
Background: John Rapanos challenged Clean Water Act jurisdiction over wetlands on his property.
Issue: What constitutes “waters of the United States” under the CWA? Specifically, do isolated wetlands or wetlands not directly connected to navigable waters fall under federal jurisdiction?
Holding: No majority opinion; plurality opinion by Justice Scalia required a relatively continuous surface water connection for federal jurisdiction; Justice Kennedy’s concurrence proposed the “significant nexus” test.
Significance:
Created legal ambiguity with two tests: Scalia’s “continuous surface connection” and Kennedy’s “significant nexus.”
Led to confusion over the scope of federal jurisdiction.
Takeaway: Set the foundation for later WOTUS rule-making and litigation.
Case 2: National Association of Manufacturers v. U.S. Army Corps of Engineers, 134 S.Ct. 1312 (2014)
Background: Industry groups challenged the 2015 Clean Water Rule (WOTUS rule under Obama administration).
Issue: Whether the EPA and Corps properly interpreted the CWA in expanding federal jurisdiction over smaller and intermittent waters.
Litigation History: Multiple federal courts issued conflicting rulings; the Supreme Court stayed the rule’s implementation pending review.
Outcome: Litigation delayed and complicated regulatory efforts; courts questioned scope of authority.
Takeaway: Demonstrated significant pushback on expanded jurisdiction claims and highlighted procedural issues in rulemaking.
Case 3: Michigan v. EPA, 817 F.3d 1033 (6th Cir. 2016)
Background: Michigan and other states challenged the Clean Water Rule asserting it exceeded the agencies' statutory authority.
Holding: The Sixth Circuit issued a nationwide stay of the Clean Water Rule, citing potential overreach and lack of clear congressional authorization.
Significance: Showed judicial skepticism toward the rule’s breadth and reinforced the importance of clear statutory authority.
Takeaway: Strengthened calls for revising the rule and affected EPA’s regulatory timeline.
Case 4: Sackett v. EPA, 566 U.S. 120 (2012)
Background: The Sacketts challenged EPA compliance orders for filling wetlands without permits.
Issue: Whether EPA compliance orders under the CWA are subject to judicial review.
Holding: Supreme Court ruled that EPA compliance orders are final agency actions subject to judicial review.
Significance: This gave landowners a chance to challenge federal jurisdiction determinations before facing penalties.
Takeaway: Increased procedural protections in WOTUS enforcement litigation.
Case 5: County of Maui v. Hawaii Wildlife Fund, 140 S.Ct. 1462 (2020)
Background: County of Maui discharged treated wastewater into injection wells that eventually reached navigable waters.
Issue: Whether the Clean Water Act requires a permit for indirect discharges through groundwater that reach jurisdictional waters.
Holding: The Supreme Court held that a permit is required when there is a “functional equivalent of a direct discharge” into navigable waters.
Significance: Extended the reach of the CWA to indirect discharges under certain conditions.
Takeaway: Clarified and slightly broadened federal jurisdiction in certain groundwater cases related to WOTUS.
Summary Table of Key WOTUS Litigation
| Case | Year | Issue | Holding/Outcome | Impact |
|---|---|---|---|---|
| Rapanos v. U.S. | 2006 | Definition of “waters of the U.S.” | No majority; plurality and “significant nexus” tests | Created legal uncertainty around scope |
| Nat’l Ass’n of Mfrs. v. EPA | 2014 | Challenge to 2015 Clean Water Rule | Stayed rule, conflicting court rulings | Showed resistance to expanded jurisdiction |
| Michigan v. EPA | 2016 | Authority over Clean Water Rule | Nationwide stay of rule | Highlighted judicial limits on EPA power |
| Sackett v. EPA | 2012 | Judicial review of EPA compliance orders | Compliance orders subject to judicial review | Enhanced procedural protections for landowners |
| County of Maui v. Hawaii Wildlife Fund | 2020 | Permitting indirect discharges via groundwater | Permit required if “functional equivalent” of direct discharge | Expanded reach of Clean Water Act permits |
Conclusion
Litigation over the Waters of the United States rule has been a pivotal battleground balancing environmental protection and regulatory limits.
Rapanos remains the foundational case shaping the interpretive framework.
Subsequent cases highlight judicial reluctance to allow expansive agency jurisdiction without clear congressional mandates.
Procedural rulings like Sackett enhance fairness in enforcement actions.
The evolving case law continues to influence EPA and Corps rulemaking, enforcement, and the practical reach of the Clean Water Act.
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