More than 40 years after the Corps and EPA first adopted regulations to define their jurisdiction over the discharge of dredged and fill materials into waters of the United States under Section 404 of the Clean Water Act, the agencies find themselves mired in litigation over the Clean Water Rule, their most recent attempt at rulemaking on the issue. 80 Fed. Reg. 37054 (June 29, 2015). The Clean Water Rule seeks to address issues raised by the Supreme Court’s decision in the Rapanos case. Challenges to the Clean Water Rule have been filed in eight Courts of Appeal and ten District Courts. Not only is there disagreement over the substance of the rule, there is disagreement over which court or courts have jurisdiction to review challenges to the rule. This disagreement pushes the resolution of the substantive issue far to the future.
It is discouraging to have this kind of uncertainty over a major piece of environmental legislation. While some people may see benefit in uncertainty, the lack of clarity on which court has jurisdiction needlessly wastes time and money that could be put to better use. Especially if the eventual ruling is that District Courts have jurisdiction, questions about the validity of the Clean Water Rule will linger for years.
To address the procedural issue, the Congress should pass legislation to specify a single court to hear all challenges to the Clean Water Rule. Under other laws, such as the Surface Mining Control and Reclamation Act, the Congress had the wisdom to specify clearly a single court with authority to review agency regulations--the Federal District Court for the District of Columbia. Similarly, Section 307(b) of the Clean Air Act gives the Court of [Appeals for the District of Columbia exclusive jurisdiction over challenges to regulations of national effect. Judicial review using a single court to review all challenges is orderly and efficient. By contrast, the flurry of lawsuits challenging the EPA and Corps new Clean Water Act regulations is costing the parties millions of dollars just to figure out which court (or courts) should review the challenges to the regulations. Is it too much to ask to have the Congress end the procedural jousting and specify a single court for judicial review?