On January 22, 2018, the United States Supreme Court unanimously held that challenges to the 2015 Clean Water Rule (2015 Rule), must be heard by federal district courts, rather than be directly reviewed by federal circuit courts. The ruling lifts the Sixth Circuit's nation-wide stay on the 2015 Rule, which outlines the jurisdictional reach of federal agencies over intrastate waters. Once the Court issues its mandate on February 16, 2018, district courts will begin hearing challenges to the Rule and all litigation pending in the Sixth Circuit will be dismissed. Property owners seeking to develop are now subject to the 2015 Rule analysis for any wetlands or potential federal waters on their property, and with little guidance from the Court, there will be confusion, delay and more expensive litigation.
The decision was anticipated to be a sigh of relief for those locked in a litigation hold due to the Sixth Circuit's stay of implementation of the Rule. However, by holding that the many district courts across the country have jurisdiction, the scope and applicability of the 2015 Rule is likely to become even murkier and result in more confusion in application of the Rule.
Practically, the opinion offers little guidance as to the validity of the 2015 Rule, which was not decided despite the longstanding controversy surrounding the merits of the Rule. Now each district court will make its separate determination as to whether the 2015 Rule was properly applied based on the specific issues at hand. Meanwhile, the Trump administration continues its efforts to repeal the 2015 Rule and implement a replacement rule, though a draft of the final rule has yet to be submitted to the White House Office of Management and Budget for interagency review.
While the uncertain application of the 2015 Rule leaves property owners and developers treading unpredictable territory, Connell Foley offers experienced guidance on this rule as well as a wide-range of other environmental and land use matters.