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Supreme Court’s “Water of the U.S.” Ruling Means Continued Uncertainty

In a decision that could open courts up to future litigation, the United States Supreme Court unanimously ruled last week that federal district courts have jurisdiction to hear challenges to rules regarding the definition of “waters of the United States.”

The Supreme Court’s decision in National Association of Manufacturers v. Department of Defense held that only federal district courts have original jurisdiction to hear challenges to the Clean Water Act’s waters of the United States definition.  A nationwide stay of the implementation of the Clean Water Rule issued by the Sixth Circuit will cease to be in effect as a result, allowing for litigation to sweep through at the district court level.

The Clean Water Rule was the Obama administration’s attempt in 2015 to clarify the Clean Water Act’s definition of waters of the United States.  Critics argued that the Clean Water Rule broadened the definition of waters of the United States, expanding the Clean Water Act beyond its intended statutory scope to include wetlands and other upstream waters.  States and several industry groups challenged the Clean Water Rule as an overreach, and the Trump administration in 2017 proposed two rules seeking to stop its implementation by either repealing it or staying its implementation until 2020.

This decision is a loss for the U.S. Environmental Protection Agency and Army Corps of Engineers, which argued that appeals courts should have jurisdiction over such matters, as the review process would be simpler and faster.  However, the EPA and Army Corps leadership have already said they plan to issue a new rule defining waters of the United States that will walk back the 2015 Clean Water Rule.  Expect more litigation in this area to occur, creating more uncertainty for businesses.

For more information about this or any related issue, please contact Indiana and Illinois environmental law attorney Kent A. “KAB” Brasseale II at (812) 423-3183 or kbrasseale@KDDK.com; or contact any member of the KDDK Environmental Law Practice Team.

About the Author

Kent A. (KAB) Brasseale II

With a degree in Chemical Engineering and more than 20 years’ experience practicing law, KAB Brasseale, is equipped with the skills and knowledge to efficiently and effectively represent clients in environmental, mineral, intellectual property, construction, business and real estate matters. KAB takes the time to understand his clients’ needs and objectives. KAB’s experience, combined with his active service in civic and professional organizations and as a real estate licensing instructor, have yielded the skills to achieve efficient “win-win” results.

 

(Nicholas J. Golding, an associate with KDDK, contributed to this article.)

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