On January 22, 2018, the Supreme Court unanimously decided a procedural issue determining the court in which challenges to the meaning of the term “Waters of the United States” (WOTUS) may be brought. The choice of court 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.

Immediate Impact of Waters of US Decision

The decision requires that any challenge to the current meaning of WOTUS must be brought in the federal district court rather than in the federal court of appeals and allowed pending litigation in the district courts to continue. Lifting the stay puts the Obama-era WOTUS definition back into effect and forces any future litigation to occur throughout the United States wherever there is a challenge to the WOTUS definition, unless it is able to get a stay in the pending litigation.

Why is Waters of the US Definition Important?

WOTUS is a key term impacting the scope of Clean Water Act. The EPA and Corps of Engineers issued the definition in May 2015. The rule was widely criticized, with many, such as farmers, home builders, and developers, claiming that the rule impermissibly allowed EPA to regulate private land. Others felt the rule narrowed federal jurisdiction. In the Supreme Court, the current Administration argued that any challenges to the meaning of WOTUS must be brought in a court of appeals; this argument was rejected in the court decision.

Under the Clean Water Act, the uncertainty as to the scope of the WOTUS rule affects whether a Federal discharge permit (NPDES permit) is required and the scope of permits needed to discharge wastewater and storm water. It also impacts whether real estate contains federally-regulated wetlands.


Caltha LLP | Your Water Quality Standards and Permit Limits Partner


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