You would think that the regulatory reach of the Clean Water Act(CWA), which was passed in 1972, would be well settled law.  However, recent litigation has demonstrated that this is certainly not the case.

Which Wetlands and Streams are Protected?

The U.S. Supreme Court has weighed in multiple times on which wetlands and streams are regulated under Section 404 of the Clean Water Act (CWA).  The Court’s most notable ruling is Rapanos, a plurality decision which is still being interpreted by lower courts.  The Court adopted a vague standard known as the “significant nexus” test to determine if waterways should be federally regulated.   The test looks at the physical, biological and chemical connection between a navigable water and the wetland/stream at issue. This blog has extensively discussed this topic in prior posts.

Are Discharges to Groundwater Covered?

Before you can discharge pollutants into a federally protected waterway (i.e. surface water) you must obtain a permit known as an NPDES discharge permit.  What has not been settled is whether an NPDES permit is required for discharges to groundwater that migrates into surface water.

The CWA prohibits discharges “to navigable waters from any point source.”  The term “navigable waters” includes any federally protected waters covered under the “significant nexus” test discussed above.  What has been an issue is whether groundwater that migrates into a federally protected water constitutes a discharge from a “point source.”

The Ninth and Fourth Circuit Courts each found that a discharge of pollutants into groundwater that migrates to a federally protected water is prohibited under the CWA.  The Fourth Circuit did require a direct hydrogeologic connection between groundwater and the surface water. (Click here to read prior post discussing this decision).

On September 24, 2018, the Sixth Circuit reached the opposite conclusion as the Ninth and Fourth Circuits. See, Kentucky Waterways Alliance v. Kentucky Utilities Company, No. 18-5115 and Tennessee Clean Water Network v. Tennessee Valley Authority, No. 17-6155. Environmental groups brought CWA citizen suit actions alleging that an NPDES permit was required for pollutants leaching from coal ash ponds into groundwater which then discharged to surface water. The key findings of the Sixth Circuit include:

  • Ground water is not a “point source” because it is not a “discernible, confined, or discrete conveyance” (as point source is defined under the CWA);
  • A point source must dump directly into surface water (i.e. federally protected water), not indirectly through groundwater.

Judge Clay issued a strong dissent to this ruling, noting that the Sixth Circuit ruling would create a major loophole-  Industry could simply discharge into groundwater first, before it reaches surface water, to avoid triggering the need for an NPDES permit.

Onto the Supreme Court or EPA?

With a split among the Circuit Courts, there is a strong possibility that this issue will be taken up by the Supreme Court.  Until then, there will be different standards in different federal circuits as to the regulatory reach of the CWA.

Meanwhile, U.S. EPA has requested comments on whether the reach of the CWA should extend to discharges of pollutants from point sources that reach surface water through groundwater.  See, 83 Fed. Reg. 7126 (Feb. 20, 2018).  Whether EPA issues a regulation to clarify the reach of the Act has yet to be seen.  However, as is evident with EPA’s attempt to clarify Rapanos, any rule making effort will be a long road with legal challenges.

Since the sunset of the very successful Clean Ohio Brownfield Revitalization Program, brownfield redevelopment has slowed in Ohio.  At a time when the economy is finally doing well, and real estate development is in full recovery mode, brownfields are still being passed over for less costly redevelopment options.

This past week, Representative Arndt introduced House Bill 737 (Click on link hb737_00_IN) which would incorporate the CERCLA Bona Fide Purchaser Defense into Ohio Law.  The Greater Ohio Policy Center (GOPC) has been working with Rep. Arndt on the legislation.  As discussed below, if passed, the legislation would fill a gap in Ohio law that discourages brownfield redevelopment.  The current legislation also includes an option to obtain a “concurrence letter” from Ohio EPA that would help provide comfort to businesses, developers and lenders as to whether the proper due diligence steps were performed to establish the environmental liability defense.

Background

The cost to cleanup historical contamination at brownfield properties has long discouraged reuse and redevelopment.  As discussed in prior posts, brownfield properties are often bypassed to develop on greenfield space moving jobs out of urban cores and promoting urban sprawl.

In 2002, Congress created the “Bona Fide Purchaser Defense” (BFPD) as an amendment to CERCLA to encourage brownfield redevelopment.  Under the BFPD, a buyer of property can establish a defense to environmental liability under CERCLA if the buyer performs environmental due diligence prior to purchase in accordance with U.S. EPA standards.

U.S. EPA adopted the “All Appropriate Inquiries” rule which establishes the mandatory level of environmental due diligence a buyer must perform to qualify for the liability defense.  If the due diligence (i.e. Phase I and Phase II assessments) identifies an ongoing release or risk to human health or the environment, the buyer must take “reasonable steps” to address those issues.

A key aspect of the BFPD is that “reasonable steps” does not mean full cleanup of the property.   Rather, the goal is to make the property safe for reuse and to prevent any ongoing threats to the environment.  In this manner, the BFPD offers a much more cost effective means to putting brownfields back into productive use than traditional full blown cleanup programs such as the Ohio EPA Voluntary Action Program (VAP).

Gap in Ohio Law

While the BFPD exists to protect a buyer from liability under CERLCA, a federal law, it does not extend protection from liability under state laws.  Currently, even if a buyer performs “All Appropriate Inquiries” on a property in Ohio, the buyer will receive no legal liability protection under Ohio law.

H.B. 737 would fill this gap.   It would extend protection from liability under Ohio law for pre-existing “hazardous substances” contamination on property to buyers who take all the necessary steps to qualify for BFPD.  By strengthening protections under the BFPD, buyers will have a greater incentive to reutilize brownfields in Ohio.

In extending the BFPD to liability under Ohio law, Ohio would be playing catch up with many other states, such as Indiana and Michigan, which already have incorporated the BFPD or BFPD like legal protection into state law.

Concurrence Letter

Under federal law, the BFPD is self-implementing, meaning a buyer completing “All Appropriate Inquiries” does not submit anything to U.S. EPA to verify they complied with the rule.  Rather, the buyer relies on advice from their environmental consultant and attorney that they have taken the proper steps to qualify for the BFPD.   The first time a buyer will learn whether they did fulfill the necessary steps to qualify for the BFPD is when it is challenged in court.  Ashley II is an example where a buyer didn’t fare well in asserting the BFPD.

While there are positives with a self-implementing program (i.e. no regulatory sign-off), many clients I work with are more conservative with regard to taking on risk.  Some may like the option to have Ohio EPA review their Phase I and Phase II (if needed) to confirm they have done enough to qualify for the BFPD.  Other clients would be comfortable without such a comfort letter.

H.B. 737 provides an optional track to receive a concurrence letter from Ohio.  Buyers still have the option of following the traditional self-implementing approach.

Indiana already has such an option available, referred to as a “comfort letter,” and it is widely used by buyers.  Providing such an option under Ohio law would provide more tools for brownfield redevelopment.

In a much anticipated move, the Trump Administration has proposed the Affordable Clean Energy (ACE) rule as a replacement for the Obama Administration Clean Power Plan (CPP).  While the CPP was controversial from the start for it broad regulation of the power industry, the ACE rule will be controversial as it signifies a 180 degree turn from aggressive climate change regulation of the energy sector.

Overview of CPP

The CPP was finalized on October 23, 2015.  The fundamental goal was to reduce CO2 emissions from the energy sector (one of the largest contributors to greenhouse gas emissions) by 32% by 2030 compared to 2005 levels.  The reductions were to be achieved through significant emission reductions from coal power plants coupled with incentives to move toward renewable energy and energy efficiency.

The CPP was touted a being flexible by giving states freedom to choose among various “building blocks” to achieve the necessary reductions.  States could either choose to regulate emissions from individual power plants or set a statewide cap of total CO2 emissions from its power sector.

Each state was given its own target for reductions (i.e. hard cap on emissions).  Under the rule, states must submit their plans (referred to as State Implementation Plans or SIPs) by 2018 and start achieving reductions by 2022.  If a state failed to adopt an approvable SIP by the deadline, EPA would impose its own Federal Implementation Plan (or FIP) to achieve the necessary reductions.

The CPP was controversial from the start. Many believed the structure of the plan as an overall regulation of the energy sector went significantly beyond EPA’s legal authority. The entire CPP hinged on the EPA’s authority under Section 111 of the Clean Air Act.  Under Section 111, the CPP set emissions standards across the entire energy sector thereby changing the mix of production to natural gas and renewables. The  crux of the legal challenge to the CPP was that Section 111 only allowed EPA to impose controls at individual power plants (i.e. within the “fence line”), not broadly across the energy sector. In February 2016, in a rare move, the Supreme Court issued a stay of the effectiveness of the CPP while the legal challenges to the CPP were heard in lower courts.

Why Replace the CPP?

The Trump Administration exited the United States from the Paris Agreement, the international accord on climate change.  President Trump and former Administrator Pruitt repeatedly questioned whether climate change was occurring.  Trump called the CPP a “job-killing regulation.”  Then why not simply repeal the CPP  with no replacement?

To repeal the CPP, the Trump Administration must go through the formal rulemaking process.  The Administration would have to justify, legally, why it is getting rid of the plan.  Complicating any effort to simply get rid of climate change regulation of the power sector was the Supreme Court prior ruling in Massachusetts. v. EPA  that the regulation of greenhouse gas emissions was required under the Clean Air Act.  Furthermore, the Obama Administration had already asserted that Section 111 of the Clean Air Act provide EPA the legal authority to regulate CO2 emission from power plants.  Therefore, given the prior Supreme Court ruling and EPA’s prior legal statements, it would be very difficult for the Administration to develop a legal justification for why there should be no regulation of CO2 emissions from the power sector.  The Administration likely decided a more prudent move would be to replace the CPP with a more flexible and less stringent rule.

Affordable Clean Energy Rule

The ACE rule reconsiders EPA’s authority under Section 111 of the Clean Air Act.  While EPA still maintains it has authority to regulate C02 emissions, it believes that authority is limited to requiring specific improvements at individual coal fired power plants  (i.e. within the “fence line).  The standards in ACE are based on a list of candidate heat rate improvement measures (either technologies or operational changes).  ACE removes the push toward natural gas and renewables.  ACE also removes the ability of states to set statewide CO2 caps on emissions as well as the trading program that would have allowed states to trade amongst themselves to more cost effectively achieve necessary emission reductions.

Under the ACE rule, each state must develop custom compliance schedules that include the selected emission standard and compliance deadlines.  States must submit the plans for EPA’s review within three years of the final EPA rule.  This effectively pushes the compliance deadline for states from 2018 under the CPP to likely 2022.  However, units are given up to 24 months to comply, which effectively pushes compliance deadlines further to 2025.

ACE also aims to encourage energy efficiency by redefining the applicability of the New Source Review (NSR) rules for power plants.  Under NSR, a facility must apply for a permit every time there is a “major modification” to an existing plant.  Under the existing NSR rule a change to facility is considered a “major modification” by measuring the change in annual emissions.  Critics of this approach argue this actually discourages energy efficiency upgrades because: 1) utilities may not adopt energy efficient upgrades due to the lengthy permitting process required; and 2) utilities may want to run plants that are more efficient more often and determining whether a upgrade constitutes a “major modification” based on annual emissions discourages increased operation of more efficient plants.  ACE proposes to change the measure for major modifications to an hourly emission test.  This change could greatly reduce the applicability of NSR to existing plants thereby avoiding the lengthy permitting process and encouraging operations of more efficient plants.  Critics argue NSR ensured the plants could not extend there useful life without adopting new emission reduction technologies.

Despite the radically different approaches to regulate CO2 from the power sector, EPA projects that the reductions under ACE are very similar to CPP.  This is because market forces will continue to push more closures of coal fired power plants as the country moves more to natural gas.  However, critics argue ACE contains no hard cap on emissions, therefore, the projected reductions are not guaranteed.

What is Next for CPP and ACE?

ACE must undergo a sixty day comment period before the rule can be finalized.  If ACE is made final, numerous legal challenges will certainly ensue.  Once again, the future of climate change regulation in the United States will be decided in the courts.

The ruling in Upstate Forever and Savannah Riverkeeper v. Kinder Morgan Energy Partners, LP expands the rights of citizens groups to bring suits for penalties and injunctive relief under the Clean Water Act even when a state EPA is actively involved in addressing the issue.  Furthermore, the court ruling allows claims to be brought even when the original spill ceased and all that remains is ongoing migration from a historical spill.

Factual Background

Back in 2014, a leak occurred in the Plantation Pipe Line which runs from Louisiana to Washington, D.C.  The leak resulted in the discharge of gasoline and petroleum below ground.  While the leak was repaired quickly, cleanup has been ongoing for a number of years.  The cleanup has been supervised by the South Carolina Department of Health and Environmental Control (SCDHEC).  In 2016, environmental groups brought suit claiming the cleanup has been inadequate to prevent migration of pollution into nearby waterways.

Issues Presented

The suit raised a number of important issues:

  • Typically, where state or federal regulators have taken affirmative action to address a violation, such regulatory action bars citizens from bringing suit. Why not here?
  • When a spill has stopped do citizen groups still have authority to assert a claim?
  • Does subsurface pollution that migrates to waterways fall within the scope of the Clean Water Act as a prohibited discharge
    • The Clean Water Act regulates “point source” discharges which are “any discernible, confined and discrete conveyance,” including pipes, ditches, channels and tunnels. 33 U.S.C. § 1362(14)

Fourth Circuit Rules the Environmental Groups Could Bring Suit

The Court did not directly address the extent of state involvement in the cleanup.  However, the cleanup was only being performed in accordance with “guidance” from the SCDHEC, not under a formal judicial consent order which would bar a subsequent citizen’s suit.  While the Company was working with state regulators to cleanup the spill, the State never took formal enforcement to cutoff citizen suits.

The Court ruled the spill was not a “wholly past violation.”  While the pipeline was fixed, the spill left contaminants in the ground that were still migrating to nearby waterways.  The Court found that the pipeline was a point source and even though the pipeline was repaired, ongoing violations were occurring due to migration of contamination to waterways from the original spill. The Court held:

“The CWA’s language does not require that the point source continue to release a pollutant for a violation to be ongoing. The CWA requires only that there be an ongoing ‘addition… to navigable waters,’ regardless whether a defendant’s conduct causing the violation is ongoing.”

The Court rejected other court rulings that held such ongoing migration of pollution did constitute wholly past violations.  It distinguished this case from a prior ruling that held decomposition of lead shot was not an ongoing violations.  Conn. Coastal Fisherman’s Ass’n v. Remington Arms Co., 989 F. 2d 1305, 1312-13 (2d Cir. 1993).  With regard to the case of lead shot, in contrast to the Kinder Morgan case, the pollutants had already been deposited into a waterway.  Here, pollution was still entering nearby waterways from the historical spill.

Finally, the Court held that violations of the Clean Water Act are not limited to “direct discharges” to a waterway.  The Clean Water Act also covers “indirect discharges,” in this case pollution migrating through groundwater and entering nearby waterways.  However, the Court cautioned, the connection between a point source of pollution and a waterway must be clear (i.e. a “direct hydrological connection”).

Congress does not often pass environmental legislation, so the passage of the Brownfields Utilization, Investment, and Local Development Act (BUILD Act) is noteworthy.  While the amount of federal funds available will still be far less than needed to move the needle, there are important changes to the law that will help facilitate brownfield redevelopment.  The most notable of these changes include:

  1. Protections for Local Governments-  Local governments will no longer trigger CERCLA liability as “owners or operators” by simply taking title to property through law enforcement activity, seizures, bankruptcy, tax delinquency, or other circumstances.  The big change is that the BUILD act removed the term “involuntary” as a qualifier for local government protection from CERCLA liability if it takes ownership of contaminated property.  This allows local government to be more proactive in taking ownership of brownfield to promote redevelopment without triggering CERCLA liability.
  2. Extends Bona Fide Purchaser Defense (BFPD) to Tenants- U.S. EPA has used enforcement discretion to extend BFPD to tenants.  The BUILD Act now formalizes that protection into the law.
  3. More Money- The Act more than doubles funding available up to $200 million each fiscal year through 2023 and additional $50 million per year for state response program funding;
  4. Expanded Eligibility-  Certain nonprofit organizations, limited liability corporations, limited partnerships and community development entities are now eligible to receive grant funding;
  5. Increases the Funding Limit-  Max grants were raised from $200,000 to $500,000;
  6. Eligibility of Administrative Costs- up to 5% of a grant can be used for administrative costs, not including investigation or identification of site, design and performance of response action, or monitoring of a natural response;
  7. Petroleum Contaminated Site-  Sites with petroleum contamination are eligible when there is no viable responsible property;
  8. Prioritizes “Clean Energy” and Waterfront Projects-  Projects that involve clean energy or are located on the waterfront will receive more points when scoring applications thereby prioritizing these projects.

While each of the improvements have benefits, the most significant are the expanded liability protections for local governments and tenants.  Allowing cities to proactively target and acquire property without fear of CERCLA liability is a major development that will help facilitate redevelopment.

On March 30, 2018, EPA Administrator Scott Pruitt issued a memorandum eliminating the authority of Regional Administrators to veto decisions by the Army Corps of Engineers to grant a permit for impacts to streams or wetlands.  The veto authority has been re-delegated to the U.S. EPA Administrator.

Any project that results in a discharge of dredged or fill material into waters of the U.S. must obtain a permit from the Army Corps of Engineers under 404 of the Clean Water Act (CWA).  Under the CWA, EPA is given authority to potentially veto the Army Corps issuance of a 404 permit if EPA determines it the permit will allow unacceptable impacts to waters of the U.S.

Administrator Pruitt’s memo states the change in control was to “restore regulatory certainty and promote the rule of law.”  However, the current regulatory uncertainty does not stem from vetoes of issued permits.  Rather, the regulatory uncertainty stems from the ongoing litigation associated with the Obama Administrations Waters of the U.S. Rule which defined the scope of federal jurisdiction under the CWA. (See prior post)  That uncertainty is likely to persist due to ongoing litigation in multiple courts.

EPA Spokesperson downplayed the significance of the memorandum:

This memo explains that jurisdictional determinations that raise significant issues or technical difficulties should be handled in a consistent and uniform manner, particularly during the WOTUS rulemaking,” EPA spokeswoman Liz Bowman said. “Regions will absolutely be involved in the process and work closely with the administrator’s office when doing the work to assess jurisdiction for very select, and often rare, cases.”

The authority under Section 404(c) of the CWA has rarely been used by EPA.  According to EPA’s webpage, the authority has only been used thirteen (13) times since 1970.

On January 22, 2018, U.S. EPA’s Assistant Administrator issued a memorandum to all U.S. EPA Regional Administrators that contained interim guidance on enforcement of environmental violations by State EPAs and the federal EPA.  The interim guidance is a significant shift away from the traditional federal/state balance on enforcement giving much greater leeway to the States.

U.S. EPA has always been active in enforcement in states, even states that have delegated programs.  EPA traditionally has set its own enforcement priorities, performed its own inspections and proceeded with enforcement when it finds violations.  While it may inform the states of its activities, it generally would not defer to the states once it initiates enforcement.

Often the federal EPA can be more stringent than the states in seeking corrective measures and/or civil penalties.  States are viewed as being more reasonable and open to considering practical compliance issues and costs of compliance.

The interim guidance signifies a shift away from this traditional approach.  Specifically, the memorandum makes the following two major statements:

  • With respect to inspections and enforcement, the EPA will generally defer to authorized States as the primary day-to-day implementer of their authorized/delegated programs. except in specific situations.
  • Where the EPA identifies violations at a facility, but the State requests that it take the lead for
    remedying the violations, the Region should defer to the State except where the EPA believes that some EPA involvement is warranted (as described in paragraph 2, above)

These statements are signify a pretty dramatic shift towards the states in controlling enforcement process within its borders.  In particular, the idea that if the EPA identifies violations and informs the states, the state can request to take the lead.  In this instance, the guidance makes clear the EPA should defer to the states except in special circumstances that are outlined in the memorandum.

The memorandum is just another indication that the Trump Administration wants to shift primary regulatory and enforcement authority to the states.

On January 22, 2018, the Supreme Court ruled in National Assoc. of Manufacturers v. Department of Defense that federal district courts have original jurisdiction to hear challenges to the 2015 Obama Administration Waters of the U.S. (WOTUS) rule which defined the extent of federal jurisdiction over streams and wetlands under the Clean Water Act.  After the ruling, the Trump Administration was concerned that the 2015 WOTUS Rule may be effective before it completes it’s own process to remove the rule and promulgate its own rule defining the extent of federal jurisdiction over waters in the United States.  

On February 6th, the EPA and Army Corps of Engineers adopted a new rule which establishes an "applicability date" of the 2015 WOTUS Rule.  The applicability date as established by the rule is February 6, 2020 which will provide time for the Trump Administration to complete the process of unwinding the 2015 WOTUS Rule and adopt its own rule defining federal jurisdiction.

The effective date of the 2015 WOTUS Rule was August 28, 2015, however, the Agency’s assert that the 2015 WOTUS Rule did not establish an "applicability date."  Therefore, the EPA and Army Corps assert that, until the applicability date passes, the Agencies will define waters and wetland falling under federal jurisdiction “consistent with Supreme Court decisions and practice and as informed by applicable agency guidance documents (the 2003 and 2008 guidance documents) as the agencies have been operating pursuant to the Sixth Circuit’s October 9, 2105, order, and the North Dakota district court’s injunction.” (The North Dakota District Court issued an injunction preventing implementation of the 2015 WOTUS Rule).

The Trump Administration believes the "applicability" rule allows the regulatory interpretation of jurisdiction under the Clean Water Act in effect prior to the 2015 WOTUS Rule to remain in place.  It is very likely this rule will also be challenged on the basis the August 28, 2015 effective date of the 2015 WOTUS Rule cannot be delayed in this manner.

President Trump’s efforts at regulatory reform continued with the announcement on January 15, 2018 that the U.S. EPA would withdraw its “once in, always in” policy for classification of Major Sources of hazardous air pollutants (HAPs) under section 112 of the Clean Air Act.  Newly sworn in Assistant Administrator of EPA’s Office of Air and Radiation, Bill Wehrum, made the announcement.  Anticipating forthcoming legal challenges Mr. Wehrum stated that the revocation of the policy was “based on a plain language reading of the statute that is in line with EPA’s guidance for other portions of the Clean Air Act.”

What is a Major Source of HAPs?

Under the Clean Air Act a “Major Source” is a air pollution source that has the potential to emit of 10 tons per year of any HAP or 25 tons per year or more of any combination of HAPs. Major sources must obtain a Title V permit which is a highly complex federal permit with stringent reporting and record keeping requirements. Any source of HAPs below these thresholds is classified as an “area source” and is subject to far less regulatory requirements.

What is the “Once in, Always In” Policy?

Historically, U.S. EPA allowed sources to voluntarily limit emissions below the HAP “Major Source” thresholds through a permit (referred to as a “synthetic minor permit” because it caps emission below thresholds).  However, sources were required to cap emission with such a permit before the compliance date established under Clean Air Act regulations, specifically, standards known as Maximum Achievable Control Technology (MACT).  If a source couldn’t obtain a permit or limit its emissions due to production or other business needs, the source was always classified as a “major source.”  The source was not allowed to later find ways to reduce HAP emissions and be declassified as a “Major Source.”

What does U.S. EPA’s Revocation of the Policy Mean?

Under U.S. EPA’s new guidance, facilities maybe able to opt-out of the major source MACT standards and Title V permitting requirements at any time.  Sources that are currently “Major Sources” now have incentive to finds ways to control or reduce emissions to reduce their regulatory burden.

What is Likely to Happen Next?

U.S. EPA says it wants to put its latest interpretation into rules to make it harder for the next Administration to revert back to the “Once in, always in” policy.  It plans on publishing notice in the Federal Register to take comments on adoption of such a rule.

Like many of the Trump Administration’s regulatory reforms of EPA, expect the latest announcement to be challenged in the courts.

This week the U.S. Supreme Court ruled in Nat’l Ass’n of Mfrs. v. Dep’t of Def., No. 16-299 that district courts have jurisdiction to hear challenges to any rule that attempts to define "Waters of the United States" for purposes of determining the scope of coverage of the Clean Water Act.  As detailed on this blog previously, ever since the Supreme Court’s prior decision in Rapanos, there has been tremendous uncertainty as to which streams and wetlands fall under federal jurisdiction.

The Obama Administration attempted to end the uncertainty by through the Clean Water Rule which broadly defined the federal jurisdiction.  Even before the rule went into effect, multiple legal challenges were filed seeking to block the rule.  

Before a decision could be reached on the merits of the rule, the proper venue for challenges to the rule had to be decided.  The Sixth Circuit ruled the proper venue was in the circuit court of appeals, not district courts.  However, the Supreme Court overturned the lower court ruling sending the challenge back to district courts.  

The ruling also removes the Sixth Circuit’s injunction against administering the Clean Water Rule.  With the injunction removed, the Clean Water Rule becomes effective in all but 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming).  These states are subject to a separate preliminary injunction which was issued by the federal district court in North Dakota. 

The Trump Administration also issued a rule to unwind the Clean Water Rule which will also likely be challenged, now in district courts.  The Administration has promised a second rule defining the scope of jurisdiction more narrowly than the Clean Water Rule.  

What the Supreme Court decision means is the district courts will likely be awash in legal challenges to both the Obama Administrations Clean Water Rule as well as the Trump Administration’s rules.  It will take years for all this litigation to percolate back up to the Supreme Court for a ruling on the merits.  In the meantime, industry and land owners will be forced to navigate uncertainty.