What are the "waters of the United States"? As it turns out, defining that statutory phrase — a central component of the Clean Water Act — is a contentious and difficult task. In 2015, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) tried their hand at proffering a definition through an agency regulation dubbed the Waters of the United States Rule (WOTUS Rule or Rule).
There are two principal avenues of judicial review of an action by the EPA. Generally, parties may file challenges to final EPA actions in federal district courts, ordinarily under the Administrative Procedure Act (APA). But the Clean Water Act (or Act) enumerates seven categories of EPA actions for which review lies directly and exclusively in the federal courts of appeals. See 86 Stat. 892, as amended, 33 U.S.C. § 1369(b)(1). The Government contends that the WOTUS Rule fits within two of those enumerated categories: (1) EPA actions "in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345," 33 U.S.C. § 1369(b)(1)(E), and (2) EPA actions "in issuing or denying any permit under section 1342," § 1369(b)(1)(F).
We disagree. The WOTUS Rule falls outside the ambit of § 1369(b)(1), and any challenges to the Rule therefore must be filed in federal district courts.
Although the jurisdictional question in this case is a discrete issue of statutory interpretation, it unfolds against the backdrop of a complex administrative scheme. The Court reviews below the aspects of that scheme that are relevant to the question at hand.
Congress enacted the Clean Water Act in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." § 1251(a). One of the Act's principal tools in achieving that objective is § 1311(a), which prohibits "the discharge of any pollutant by any person," except in express circumstances. A "discharge of a pollutant" is defined broadly to include "any addition of any pollutant to navigable waters from any point source," such as a pipe, ditch, or other "discernible, confined and discrete conveyance." §§ 1362(12), (14). And "navigable waters," in turn, means "the waters of the United States, including the territorial seas." § 1362(7). Because many of the Act's substantive provisions apply to "navigable waters," the statutory phrase "waters of the United States" circumscribes the geographic scope of the Act in certain respects.
The second permitting program, administered by the Corps under § 1344, authorizes discharges of "`dredged or fill material,'" which "are solids that do not readily wash downstream." Rapanos, 547 U.S., at 723, 126 S.Ct. 2208 (plurality opinion). Although the Corps bears primary responsibility in determining whether to issue a § 1344 permit, the EPA retains authority to veto the specification of a site for discharge of fill material. See § 1344(c).
The statutory term "waters of the United States" delineates the geographic reach of many of the Act's substantive provisions, including the two permitting programs outlined above. In decades past, the EPA and the Corps (collectively, the agencies) have struggled to define and apply that statutory term. See, e.g., 42 Fed. Reg. 37124, 37127 (1977); 51 Fed.Reg. 41216-41217 (1986). And this Court, in turn, has considered those regulatory efforts on several occasions, upholding one such effort as a permissible interpretation of the statute but striking down two others as overbroad. Compare United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985) (upholding the Corps' interpretation that "waters of the United States" include wetlands adjacent to navigable waters), with Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (rejecting application of the Corps' interpretation of "waters of the United States" as applied to sand and gravel pit); and Rapanos, 547 U.S., at 729, 757, 126 S.Ct. 2208 (plurality opinion) (remanding for further review the Corps' application of the Act to wetlands lying "near ditches or man-made drains that eventually empty into traditional navigable waters").
In 2015, responding to repeated calls for a more precise definition of "waters of the United States," the agencies jointly promulgated the WOTUS Rule. 80 Fed.Reg. 37054 (final rule). The WOTUS Rule was intended to "provid[e] simpler, clearer, and
As noted above, the Act contemplates two primary avenues for judicial review of EPA actions, each with its own unique set of procedural provisions and statutes of limitations. For "certain suits challenging some agency actions," the Act grants the federal courts of appeals original and "exclusive" jurisdiction. Decker v. Northwest Environmental Defense Center, 568 U.S. 597, 608, 133 S.Ct. 1326, 185 L.Ed.2d 447 (2013). Seven categories of EPA actions fall within that jurisdictional provision; they include actions of the EPA Administrator —
To challenge those types of actions, a party must file a petition for review in the court of appeals for the "judicial district in which [the party] resides or transacts business which is directly affected by" the challenged action. Ibid. Any such petition must be filed within 120 days after the date of the challenged action. Ibid. If there are multiple petitions challenging the same EPA action, those petitions are consolidated in one circuit, chosen randomly from among the circuits in which the petitions were filed. See 28 U.S.C. § 2112(a)(3). Section 1369(b) also contains a preclusion-of-review provision, which mandates that any agency action reviewable under § 1369(b)(1) "shall not be subject to judicial review in any civil or criminal proceeding for enforcement." 33 U.S.C. § 1369(b)(2).
The second avenue for judicial review covers final EPA actions falling outside the scope of § 1369(b)(1). Those actions are typically governed by the APA.
Soon after the agencies promulgated the WOTUS Rule, several parties, including NAM, challenged the Rule in United States District Courts across the country. The Judicial Panel on Multidistrict Litigation (JPML) denied the Government's request to consolidate and transfer those actions to a single district court. See Order Denying Transfer in In re Clean Water Rule, MDL No. 2663, Doc. 163 (Oct. 13, 2015).
Uncertainty surrounding the scope of the Act's judicial-review provision had also prompted many parties — but not NAM — to file "protective" petitions for review in various Courts of Appeals to preserve their challenges in the event that their District Court lawsuits were dismissed for lack of jurisdiction under § 1369(b). The JPML consolidated these appellate-court actions and transferred them to the Court of Appeals for the Sixth Circuit. See Consolidation Order in In re EPA and Dept. of Defense Final Rule, MCP No. 135, Doc. 3 (July 28, 2015). The Court of Appeals thereafter issued a nationwide stay of the WOTUS Rule pending further proceedings. See In re EPA and Dept. of Defense Final Rule, 803 F.3d 804 (C.A.6 2015).
Meanwhile, parallel litigation continued in the District Courts. Some District Courts dismissed the pending lawsuits, concluding that the courts of appeals had exclusive jurisdiction over challenges to the Rule. See Murray Energy Corp. v. EPA, 2015 WL 5062506, *6 (N.D.W.Va., Aug. 26, 2015) (dismissing for lack of jurisdiction); Georgia v. McCarthy, 2015 WL 5092568, *3 (S.D.Ga., Aug. 27, 2015) (concluding that court lacked jurisdiction to enter preliminary injunction). One District Court, by contrast, held that it had jurisdiction to review the WOTUS Rule. See North Dakota v. EPA, 127 F.Supp.3d 1047, 1052-1053 (D.N.D. 2015).
NAM intentionally did not file a protective petition in any court of appeals to "ensure that [it] could challenge the Sixth Circuit's jurisdiction." Brief for Petitioner 1, n. 1. Instead, NAM intervened as a respondent in the Sixth Circuit and, along with several other parties, moved to dismiss for lack of jurisdiction.
As noted, § 1369(b)(1) enumerates seven categories of EPA actions that must be challenged directly in the federal courts of appeals. Of those seven, only two are at issue in this case: subparagraph (E), which encompasses actions "approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345," § 1369(b)(1)(E), and subparagraph (F), which covers actions "issuing or denying any [NPDES] permit," § 1369(b)(1)(F).
Subparagraph (E) grants courts of appeals exclusive jurisdiction to review any EPA action "in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345." 33 U.S.C. § 1369(b)(1)(E). The Government contends that "EPA's action in issuing the" WOTUS Rule "readily qualifies as an action promulgating or approving an `other limitation' under section 1311," because the Rule establishes the "geographic scope of limitations promulgated under Section 1311." Brief for Federal Respondents 18-19. We disagree.
To begin, the WOTUS Rule is not an "effluent limitation" — a conclusion the Government does not meaningfully dispute. An "effluent limitation" is "any restriction... on quantities, rates, and concentrations" of certain pollutants "which are discharged from point sources into navigable waters." § 1362(11). The WOTUS Rule imposes no such restriction. Rather, the Rule announces a regulatory definition for a statutory term and "imposes no enforceable duty" on the "private sector." See 80 Fed.Reg. 37102.
The Government instead maintains that the WOTUS Rule is an "other limitation" under subparagraph (E). Although the Act provides no express definition of that residual phrase, the text and structure of subparagraph (E) tell us what that language means. And it is not as broad as the Government insists.
For starters, Congress' use of the phrase "effluent limitation or other limitation" in subparagraph (E) suggests that an "other limitation" must be similar in kind to an "effluent limitation": that is, a limitation related to the discharge of pollutants. An "other limitation," for instance, could be a non-numerical operational practice or an equipment specification that, like an
The Government tries to escape this conclusion by arguing that subparagraph (E) expressly covers "any effluent limitation or other limitation," § 1369(b)(1)(E) (emphasis added), and that the use of the word "any" makes clear that Congress intended subparagraph (E) to sweep broadly and encompass all EPA actions imposing limitations of any sort under the cross-referenced sections. True, use of the word "any" will sometimes indicate that Congress intended particular statutory text to sweep broadly. See, e.g., Ali v. Federal Bureau of Prisons, 552 U.S. 214, 220, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008) ("Congress' use of `any' to modify `other law enforcement officer' is most naturally read to mean law enforcement officers of whatever kind"). But whether it does so necessarily depends on the statutory context, and the word "any" in this context does not bear the heavy weight the Government puts upon it. Contrary to the Government's assertion, the word "any" cannot expand the phrase "other limitation" beyond those limitations that, like effluent limitations, restrict the discharge of pollutants. In urging otherwise, the Government reads the words "effluent limitation and other" completely out of the statute and insists that what Congress really meant to say is "any limitation" under the cross-referenced sections. Of course, those are not the words that Congress wrote, and this Court is not free to "rewrite the statute" to the Government's liking. Puerto Rico v. Franklin Cal. Tax-Free Trust, 579 U.S. ___, ___, 136 S.Ct. 1938, 1949, 195 L.Ed.2d 298 (2016) ("[O]ur constitutional structure does not permit this Court to rewrite the statute that Congress has enacted" (internal quotation marks omitted)).
Even if the Court accepted the Government's reading of "effluent limitation or other limitation," however, the Rule still does not fall within subparagraph (E) because it is not a limitation promulgated or approved "under section 1311."
The Government nonetheless insists that the language "under section 1311" poses no barrier to its reading of subparagraph (E) because the "[WOTUS] Rule's legal and practical effect is to make effluent and other limitations under Section 1311 applicable to the waters that the Rule covers." Id., at 28. But the Government's "practical-effects" test is not grounded in the statutory text. Subparagraph (E) encompasses EPA actions that "approv[e] or promulgat[e] any effluent limitation or other limitation under section 1311," not EPA actions that have the "legal or practical effect" of making such limitations applicable to certain waters. Tellingly, the Government offers no textual basis to read its "practical-effects" test into subparagraph (E).
Beyond disregarding the statutory text, the Government's construction also renders other statutory language superfluous. Take, for instance, subparagraph (E)'s cross-references to §§ 1312 and 1316. See § 1369(b)(1)(E) (covering EPA action "in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345" (emphasis added)). Section 1311(a) authorizes discharges that comply with those two cross-referenced sections. See § 1311(a) (prohibiting discharge of pollutants "[e]xcept as in compliance with ... sections 1312, 1316 ..."). Thus, EPA actions under §§ 1312 and 1316 also would have a "legal and practical
Similarly, the Government's "practical-effects" test ignores Congress' decision to grant appellate courts exclusive jurisdiction only over seven enumerated types of EPA actions set forth in § 1369(b)(1). Section 1313, which governs the EPA's approval and promulgation of state waterquality standards, is a prime example. Approving or promulgating state water-quality standards under § 1313 also has the "legal and practical effect" of requiring that effluent limitations be tailored to meet those standards. Under the Government's reading, subparagraph (E) would encompass EPA actions taken under § 1313, even though such actions are nowhere listed in § 1369(b)(1). Courts are required to give effect to Congress' express inclusions and exclusions, not disregard them. See Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ("Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion" (internal quotation marks and brackets omitted)).
Accordingly, subparagraph (E) does not confer original and exclusive jurisdiction on courts of appeals to review the WOTUS Rule.
The Government fares no better under subparagraph (F). That provision grants courts of appeals exclusive and original jurisdiction to review any EPA action "in issuing or denying any permit under section 1342." § 1369(b)(1)(F). As explained above, NPDES permits issued under § 1342 "authoriz[e] the discharge of pollutants" into certain waters "in accordance with specified conditions." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 52, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). The WOTUS Rule neither issues nor denies a permit under the NPDES permitting program. Because the plain language of subparagraph (F) is "unambiguous," "our inquiry begins with the statutory text, and ends there as well." BedRoc Limited, LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (plurality opinion).
Rather than confront that statutory text, the Government asks us to ignore it altogether. To that end, the Government urges us to apply the "functional interpretive approach" that it purports the Court employed in Crown Simpson Pulp Co. v. Costle, 445 U.S. 193, 100 S.Ct. 1093, 63 L.Ed.2d 312 (1980) (per curiam). Brief for Federal Respondents 31. Crown Simpson, the Government says, broadens the statutory inquiry under subparagraph (F) by directing courts to ask whether agency actions are "`functionally similar'" to permit issuances or denials. Brief for Federal Respondents 33 (quoting Crown Simpson, 445 U.S., at 196, 100 S.Ct. 1093). According to the Government, the WOTUS Rule is "functionally similar" to issuing or denying a permit because it establishes the geographical bounds of EPA's permitting authority and thereby dictates whether permits may or may not be issued. We reject this approach because it misconstrues
First, Crown Simpson provides scant support for the Government's atextual construction of subparagraph (F). In that case, the Court held that subparagraph (F) conferred jurisdiction over the EPA's veto of a state-issued permit. See 445 U.S., at 196, 100 S.Ct. 1093. The Court explained that "[w]hen [the] EPA ... objects to effluent limitations contained in a state-issued permit, the precise effect of its action is to `den[y]' a permit within the meaning of [subparagraph F]." Ibid. Contrary to the Government's suggestion, the WOTUS Rule in no way resembles the EPA's veto of a state-issued permit addressed in Crown Simpson. Although the WOTUS Rule may define a jurisdictional prerequisite of the EPA's authority to issue or deny a permit, the Rule itself makes no decision whatsoever on individual permit applications. Crown Simpson is therefore inapposite.
In addition, the Government's proposed "functional interpretive approach" is completely unmoored from the statutory text. As explained above, subparagraph (F) applies only to EPA actions "issuing or denying" a permit "under section 1342." The Government invites us to broaden that narrow language to cover any agency action that dictates whether a permit is issued or denied. Congress easily could have drafted subparagraph (F) in that broad manner. Indeed, Congress could have said that subparagraph (F) covers EPA actions "relating to whether a permit is issued or denied," or, alternatively, EPA actions "establishing the boundaries of EPA's permitting authority." But Congress chose not to do so. The Court declines the Government's invitation to override Congress' considered choice by rewriting the words of the statute. See Franklin Cal. Tax-Free Trust, 579 U.S., at ___, 136 S.Ct., at 1948-1949.
Finally, the Government's interpretation of subparagraph (F) would create surplusage in other parts of § 1369(b)(1). Subparagraph (D) is one example. That provision gives federal appellate courts original jurisdiction to review EPA actions "making any determination as to a State permit program submitted under section 1342(b)." Put differently, subparagraph (D) establishes the boundaries of EPA's permitting authority vis-à-vis the States. Under the Government's functional interpretive approach, however, subparagraph (F) would already reach actions delineating the boundaries of EPA's permitting authority, thus rendering subparagraph (D) unnecessary. Absent clear evidence that Congress intended this surplusage, the Court rejects an interpretation of the statute that would render an entire subparagraph meaningless. As this Court has noted time and time again, the Court is "obliged to give effect, if possible, to every word Congress used." Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979).
For these reasons, subparagraph (F) does not grant courts of appeals exclusive jurisdiction to review the WOTUS Rule in the first instance.
Unable to anchor its preferred reading in the statutory text, the Government seeks refuge in a litany of extratextual considerations that it believes support direct circuit-court review of the WOTUS Rule. Those considerations — alone and in combination — provide no basis to depart from the statute's plain language.
First, the Government contends that initial circuit-court review of the WOTUS
Second, and relatedly, the Government argues that immediate court-of-appeals review facilitates quick and orderly resolution of disputes about the WOTUS Rule. We acknowledge that routing WOTUS Rule challenges directly to the courts of appeals may improve judicial efficiency. See Crown Simpson, 445 U.S., at 197, 100 S.Ct. 1093 (noting that "the additional level of judicial review" that would occur in district courts "would likely cause delays in resolving disputes under the Act"); see also Harrison v. PPG Industries, Inc., 446 U.S. 578, 593, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980) ("The most obvious advantage of direct review by a court of appeals is the time saved compared to review by a district court, followed by a second review on appeal"). But efficiency was not Congress' only consideration. Had Congress wanted to prioritize efficiency, it could have authorized direct circuit-court review of all nationally applicable regulations, as it did under the Clean Air Act. See 42 U.S.C. § 7607(b)(1) (granting the D.C. Circuit original jurisdiction to review "any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this chapter" and granting regional circuits jurisdiction to review "any other final action of the Administrator under this chapter ... which is locally or regionally applicable"). That Congress structured judicial review under the Act differently confirms what the text makes clear — that § 1369(b)(1) does not grant courts of appeals original jurisdiction to review many types of EPA action, including the WOTUS Rule.
Third, the Government contends that "initial review in a court of appeals" promotes "`National uniformity, an important goal in dealing with broad regulations.'" Brief for Federal Respondents 35 (quoting Natural Resources Defense Council v. EPA, 673 F.2d 400, 405, n. 15 (C.A.D.C.1982) (R.B. Ginsburg, J.)). That argument carries some logical force. After all, the numerous challenges to the WOTUS Rule in this very case were consolidated in one Court of Appeals, avoiding any risk of conflict among other courts of appeals, whereas the same was not true
Ultimately, the Government's policy arguments do not obscure what the statutory language makes clear: Subparagraphs (E) and (F) do not grant courts of appeals exclusive jurisdiction to review the WOTUS Rule.
In a final effort to bolster its preferred reading of the Act, the Government invokes the presumption favoring court-of-appeals review of administrative action. According to the Government, when a direct-review provision like § 1369(b)(1) exists, this Court "will not presume that Congress intended to depart from the sound policy of placing initial ... review in the courts of appeals" "[a]bsent a firm indication that Congress intended to locate initial APA review of agency action in the district courts." Florida Power & Light Co. v. Lorion, 470 U.S. 729, 745, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). But the Government's reliance on Florida Power is misplaced. Unlike the "ambiguous" judicial review provisions at issue in Florida Power, id., at 737, 105 S.Ct. 1598, the scope of subparagraphs (E) and (F) is set forth clearly in the statute. As the Court recognized in Florida Power, jurisdiction is "governed by the intent of Congress and not by any views we may have about sound policy." Id., at 746, 105 S.Ct. 1598. Here, Congress' intent is clear from the statutory text.
For the foregoing reasons, we reverse the judgment of the Court of Appeals and remand the case with instructions to dismiss the petitions for review for lack of jurisdiction.
It is so ordered.
The parties have not suggested that any of these subsequent developments render this case moot. That is for good reason. Because the WOTUS Rule remains on the books for now, the parties retain "`a concrete interest'" in the outcome of this litigation, and it is not "`impossible for a court to grant any effectual relief ... to the prevailing party.'" Chafin v. Chafin, 568 U.S. 165, 172, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013) (quoting Knox v. Service Employees, 567 U.S. 298, 307, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012)). That remains true even if the agencies finalize and implement the November 2017 proposed rule's new effective date. That proposed rule does not purport to rescind the WOTUS Rule; it simply delays the WOTUS Rule's effective date.