The proposed rule would scale back federal jurisdiction under the Clean Water Act.
By Nikki Buffa, John C. Heintz, Michael G. Romey, Jennifer K. Roy, Lucas I. Quass, and Samantha Yeager
On November 17, 2025, the United States Environmental Protection Agency (EPA) and the Department of the Army, Corps of Engineers (USACE) (together with EPA, the Agencies) announced a proposed rule that would revise the definition of “waters of the United States” (WOTUS) under the
The proposed definition would significantly extend the regulatory scope of the Clean Water Act.
By Michael G. Romey, Cody M. Kermanian, and Lucas I. Quass
On December 7, 2021, the US Environmental Protection Agency and the US Army Corps of Engineers (collectively, the Agencies) published a proposed rule (the Proposed Rule) to revise the definition of “waters of the United States” (WOTUS), a critical term that determines the Clean Water Act’s (CWA’s) scope and application. The proposed changes, published in the Federal Register, could signal a return to the more inclusive pre-2017 WOTUS interpretation, which could broaden the CWA’s application. Comments on the Proposed Rule are due on February 7, 2022.
New definition of “waters of the United States” takes effect June 22, 2020 everywhere except Colorado under split decisions.
By Janice M. Schneider and Peter R. Viola
In the closely watched battle over the scope of the Clean Water Act (CWA), a federal court in California has denied a motion brought by a coalition of states to stay the Trump Administration’s rule narrowing the law’s reach. However, the federal court in Colorado has enjoined the rule in that state, and litigation in these and other courts will continue — including an anticipated appeal of the California decision to the Ninth Circuit Court of Appeals.
By Andrea Hogan, Lucas Quass, John Morris and Steven Mach
On January 13, 2017, the US Supreme Court granted certiorari for an appeal that will allow the Court to determine the proper jurisdiction for litigation challenging the Clean Water Rule (the Final Rule).[1] The federal Clean Water Act (CWA) provides for original jurisdiction in the Circuit Courts of Appeal for certain categories of actions taken by the US Environmental Protection Agency (EPA). By accepting review of the appeal, the Court will now decide whether to affirm the Sixth Circuit Court of Appeal’s assertion of original jurisdiction over litigation challenging the Final Rule, and in doing so, the Court will set the stage for consideration of Final Rule litigation on the merits. As a result of the Supreme Court’s grant of certiorari, on January 25, 2017, the Sixth Circuit Court of Appeal granted a motion to hold in abeyance the litigation over the Final Rule until the US Supreme Court reaches a decision regarding jurisdiction.
Clean Water Rule’s Broad Application
EPA and the US Army Corps of Engineers (Corps) jointly issued the Final Rule to define “waters of the United States” (WOTUS), a threshold term that delimits CWA’s scope and application. The Final Rule has broad application. It defines jurisdictional waters not only for Section 404 of the CWA (permitting for dredge and fill operations) but also under Section 303 (addressing water quality standards and maximum daily loads); Section 311 (relating to oil spill prevention and response); Section 401 (concerning state water quality certifications); and Section 402 (establishing the National Pollutant Discharge Elimination System (NPDES) permit program). Critics of the Final Rule argue that it expands federal jurisdiction significantly beyond the bounds of court precedent interpreting the CWA’s statutory mandate. We previously published a Client Alert that discusses the Final Rule’s scope and implications in greater detail.
By Christopher Garrett, Andrea Hogan, Daniel Brunton, and Daniel Aleshire
On February 22, 2016, in a 2-1 decision, the US Court of Appeals for the Sixth Circuit determined it has jurisdiction over the numerous legal challenges to the Clean Water Rule (the Final Rule), thus siding with the position of the agencies that promulgated the Final Rule, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (together, the Agencies). The Final Rule was issued on May 27, 2015 and defines “waters of the United States,” a threshold term that determines the Clean Water Act’s (CWA) scope and application. Previously, on October 9, 2015, the Sixth Circuit stayed the implementation of the Final Rule nationwide, concluding that the challengers demonstrated a substantial possibility of success on the merits. In a fragmented decision, two of the panel’s judges found that under the Sixth Circuit precedent in National Cotton Council of America v. U.S. E.P.A., 553 F.3d 927, 933 (6th Cir. 2009), the Sixth Circuit had jurisdiction over review of the Final Rule.
Sixth Circuit Issues Splintered Decision
Judge David W. McKeague delivered the Sixth Circuit’s opinion and concluded that the court has jurisdiction over challenges to the Final Rule under both 33 U.S.C. § 1369(b)(1)(E) and (F). Section 1369 identifies the seven types of actions by the EPA Administrator that are reviewable directly in the federal circuit courts. Sections 1369(b)(1)(E) and (F) provide for review of actions “in approving or promulgating any effluent limitation or other limitation” under certain CWA sections and actions “in issuing or denying any permit under section 1342,” which governs the issuance of permits for the discharge of pollutants. In concluding that the Sixth Circuit had jurisdiction over review of the Final Rule under both provisions, Judge McKeague relied on a “functional” rather than “formalistic” construction of the CWA’s judicial review provision, an approach that the opinion states has been favored by courts, including the Supreme Court and the Sixth Circuit, over the past 35 years.