Supreme Court Hears WOTUS Arguments

Filed in Codes and Standards, Environment, Legal by on October 11, 2017 0 Comments

marshlandThe U.S. Supreme Court heard oral argument today on one issue that has arisen under the Obama Administration’s 2015 definition of the term “waters of the United States” — commonly called the WOTUS rule.

When the Environmental Protection Agency finalized the 2015 WOTUS rule, it relied on a section of the Clean Water Act that requires certain specific challenges be heard directly in the appeallate courts rather than the district courts.

Due to the confusion caused by EPA’s claim, NAHB was forced to file two lawsuits challenging the WOTUS rule—one in the Southern District of Texas and one in the Court of Appeals for the Sixth Circuit.

In addition, before NAHB could actually challenge the substance of the rule, the association needed to know definitively what court had jurisdiction over the case.

The jurisdictional decision has dragged on for more than a year.

Today’s Supreme Court oral argument is the culmination of two years of arguments by NAHB and many other businesses and states concerning where this case should be heard.

Supporting its theory, the government primarily relied on a section of the Clean Water Act that requires challenges to “effluent limitations” or “other limitations” to be litigated in the courts of appeals.

As a backup, the government also claimed that the case should be heard in the court of appeals because the act requires people challenging permits to bring their cases directly there.

NAHB’s coalition argued that the WOTUS rule is a definition, and that it was promulgated under the government’s general Clean Water Act authority to develop rules. Furthermore, the coalition maintained that, because it is a definition, the WOTUS rule cannot be considered as an “effluent limitation” or characterized as the issuance (or denial) of a permit. Therefore, the case should be heard in district court.

Moreover, NAHB believes that in this case it would be better to have the rule argued in a number of district courts and then moved to the appellate courts to better flesh out the problems associated with the current rule.

While some justices seemed to agree with our reading of the act, other justices supposed that the WOTUS rule might fall in the “other limitation” category because it does limit where a person can legally discharge a pollutant.

Further, some of the justices explained that it would certainly be more efficient if challenges to rules like WOTUS were heard in a single court of appeals, as opposed to various district courts around the country. As is usually the case, it is hard to determine how the court will rule.

The court will likely file a decision the end of December. For additional information, contact Tom Ward at 800-266-8230.

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