National Assn. of Mfrs. v. Department of Defense

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NATIONAL ASSOCIATION OF MANUFACTURERS v.
DEPARTMENT OF DEFENSE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 16–299. Argued October 11, 2017—Decided January 22, 2018
The Clean Water Act (Act) generally prohibits “the discharge of any
pollutant by any person,” except in express circumstances. 33
U.S. C. §1311(a). A “discharge of a pollutant” includes “any addition
of any pollutant to navigable waters from any point source,”
§1362(12), and the statutory term “navigable waters,” in turn, means
“the waters of the United States,” §1362(7). Section §1311(a) con-
tains important exceptions to the general prohibition on discharge of
pollutants, including two permitting schemes that authorize certain
entities to discharge pollutants into navigable waters: the National
Pollutant Discharge Elimination System (NPDES) program adminis-
tered by the Environmental Protection Agency (EPA) under §1342,
and a program administered by the Army Corps of Engineers (Corps)
under §1344.
The statutory term “waters of the United States” delineates the
geographic reach of those permitting programs as well as other sub-
stantive provisions of the Act. In 2015, the EPA and the Corps prof-
fered a definition of that term through an agency regulation dubbed
the Waters of the United States Rule (WOTUS Rule or Rule). The
WOTUS Rule “imposes no enforceable duty on any state, local, or
tribal governments, or the private sector.” 80 Fed. Reg. 37102. As
stated in its preamble, the Rule “does not establish any regulatory
requirements” and is instead “a definitional rule that clarifies the
scope of” the statutory term “waters of the United States.” Id., at
37054.
There are two principal avenues of judicial review of an EPA ac-
tion. Generally, parties may file challenges to final EPA actions in
federal district courts, typically under the Administrative Procedure
2 NATIONAL ASSN. OF MFRS. v. DEPARTMENT OF DEFENSE
Syllabus
Act. But the Clean Water Act enumerates seven categories of EPA
actions for which review lies directly and exclusively in the federal
courts of appeals, including, as relevant here, EPA actions “approving
or promulgating any effluent limitation or other limitation under sec-
tion 1311, 1312, 1316, or 1345,” §1369(b)(1)(E), and EPA actions “is-
suing or denying any permit under section 1342,” §1369(b)(1)(F).
Several parties, including petitioner National Association of Manu-
facturers (NAM), challenged the Rule in United States District
Courts across the country. Many parties, but not NAM, filed “protec-
tive” petitions for review in various Courts of Appeals to preserve
their challenges should their District Court lawsuits be dismissed for
lack of jurisdiction under §1369(b). The circuit-court actions were
consolidated and transferred to the Court of Appeals for the Sixth
Circuit. Meanwhile, the parallel actions in the District Courts con-
tinued. NAM intervened as a respondent in the Sixth Circuit and,
along with several other parties, moved to dismiss for lack of jurisdic-
tion. The Government opposed those motions, arguing that the chal-
lenges must be brought first in the Court of Appeals because the
WOTUS Rule fell within subparagraphs (E) and (F) of §1369(b)(1).
The Sixth Circuit denied the motions to dismiss.
Held: Because the WOTUS Rule falls outside the ambit of §1369(b)(1),
challenges to the Rule must be filed in federal district courts. Pp. 9–
20.
(a) Neither subparagraph (E) nor subparagraph (F) of §1369(b)(1)
grants courts of appeals exclusive jurisdiction to review the WOTUS
Rule in the first instance. Pp. 9–17.
(1) Subparagraph (E) grants courts of appeals exclusive jurisdic-
tion to review any EPA action “in approving or promulgating any ef-
fluent limitation or other limitation under section 1311, 1312, 1316,
or 1345.” 33 U.S. C. §1369(b)(1)(E). The WOTUS Rule does not fall
within that provision. To begin, the Rule is not an “effluent limita-
tion,” which the Act defines as “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; instead, it announces a regulatory
definition for a statutory term. Nor does the Rule fit within subpara-
graph (E)’s “other limitation” language. Congress’ use of the phrase
“effluent limitation or other limitation” suggests that an “other limi-
tation” must be similar in kind to an “effluent limitation”: that is, a
limitation related to the discharge of pollutants. This natural read-
ing is reinforced by subparagraph (E)’s cross-references to §§1311,
1312, 1316, and 1345, which each impose restrictions on the dis-
charge of certain pollutants. The statutory structure thus confirms
that an “other limitation” must also be some type of restriction on the
Cite as: 583 U. S. ____ (2018) 3
Syllabus
discharge of pollutants. Because the WOTUS Rule does no such
thing, it falls outside the scope of subparagraph (E).
Even if the Government’s reading of “effluent limitation or other
limitation” were accepted, however, the Rule still does not fall within
subparagraph (E) because it is not a limitation promulgated or ap-
proved “under section 1311.” As subparagraph (E)’s statutory context
makes clear, this phrase is most naturally read to mean that the ef-
fluent or other limitation must be approved or promulgated “pursu-
ant to” or “by reason of the authority of” §1311. But the EPA did not
promulgate or approve the WOTUS Rule under §1311, which neither
directs nor authorizes the EPA to define a statutory phrase appearing
elsewhere in the Act. Rather, the WOTUS Rule was promulgated or
approved under §1361(a), which grants the EPA general rulemaking
authority “to prescribe such regulations as are necessary to carry out
[its] functions under” the Act.
The Government contends that the statutory language “under sec-
tion 1311” poses no barrier to its reading of subparagraph (E) be-
cause the WOTUS Rule’s practical effect is to make §1311’s limita-
tions applicable to the waters covered by the Rule. But the
Government’s “practical effects” test is not grounded in the statute,
renders other statutory language superfluous, and ignores Congress’
decision to grant courts of appeals exclusive jurisdiction only over
seven enumerated types of EPA actions set forth in §1369(b)(1).
Pp. 9–15.
(2) The Government fares no better under subparagraph (F),
which grants courts of appeals exclusive and original jurisdiction to
review any EPA action “in issuing or denying any permit under sec-
tion 1342.” §1369(b)(1)(F). That provision does not cover the
WOTUS Rule, which neither issues nor denies NPDES permits is-
sued under §1342. Seeking to avoid that conclusion, the Government
invokes this Court’s decision in Crown Simpson Pulp Co. v. Costle,
445 U.S. 193, 196, and argues that the WOTUS Rule falls under
subparagraph (F) because it is “functionally similar” to issuing or
denying a permit. But that construction misconstrues Crown Simp-
son, is unmoored from the statutory text, and would create surplus-
age in other parts of the statute. Pp. 15–17.
(b) The Government’s policy arguments provide no basis to depart
from the statute’s plain language. First, the Government contends
that initial circuit-court review of the WOTUS Rule would avoid a bi-
furcated judicial-review scheme under which courts of appeals would
review individual actions issuing or denying permits, whereas district
courts would review broader regulations governing those actions.
But, as explained, Congress has made clear that rules like the
WOTUS Rule must be reviewed first in federal district courts. Crown
4 NATIONAL ASSN. OF MFRS. v. DEPARTMENT OF DEFENSE
Syllabus
Simpson, 445 U.S., at 197, distinguished. Moreover, the bifurcation
that the Government bemoans is no more irrational than Congress’
choice to assign challenges to NPDES permits to circuit courts and
challenges to §1344 permits to district courts, see §1369(b)(1)(E).
And many of this Court’s recent decisions regarding the agencies’ ap-
plication and definition of “waters of the United States” have origi-
nated in district courts, not the courts of appeals. Second, the Court
acknowledges that, as the Government argues, routing WOTUS Rule
challenges directly to the courts of appeals may improve judicial effi-
ciency. But efficiency was not Congress’ only consideration. Had
Congress wanted to prioritize efficiency, it could have authorized di-
rect circuit-court review of all nationally applicable regulations, as it
did under the Clean Air Act, instead of structuring judicial review as
it did in §1369(b)(1). Third, the Government argues that initial re-
view in the courts of appeals promotes the important goal of national
uniformity with regard to broad regulations. Although that argu-
ment carries some logical force, Congress did not pursue that end at
all costs. Finally, contrary to the Government’s contention, the pre-
sumption favoring court-of-appeals review of administrative action
does not apply here, for the scope of subparagraphs (E) and (F) is set
forth clearly in the statute. Florida Power & Light Co. v. Lorion, 470
U.S. 729, 745, 737, distinguished. Pp. 17–20.
817 F.3d 261, reversed and remanded.
SOTOMAYOR, J., delivered the opinion for a unanimous Court.
Cite as: 583 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–299
_________________
NATIONAL ASSOCIATION OF MANUFACTURERS,
PETITIONER v. DEPARTMENT OF
DEFENSE, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[January 22, 2018]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
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 regula­
tion dubbed the Waters of the United States Rule
(WOTUS Rule or Rule).1 The WOTUS Rule prompted
several parties, including petitioner National Association
of Manufacturers (NAM), to challenge the regulation in
federal court. This case, however, is not about the sub­
stantive challenges to the WOTUS Rule. Rather, it is
about in which federal court those challenges must be
filed.
There are two principal avenues of judicial review of an
——————
1 We note that some of the parties and the Court of Appeals below
refer to the WOTUS Rule as the “Clean Water Rule.” Throughout this
opinion, we have opted to use the former term in lieu of the latter.
2 NATIONAL ASSN. OF MFRS. v. DEPARTMENT OF DEFENSE
Opinion of the Court
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 con­
tends that the WOTUS Rule fits within two of those enu­
merated 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.
I
A
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.
1
Congress enacted the Clean Water Act in 1972 “to re­
store 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
Cite as: 583 U. S. ____ (2018) 3
Opinion of the Court
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 wa­
ters,” the statutory phrase “waters of the United States”
circumscribes the geographic scope of the Act in certain
respects.
Section 1311(a) contains important exceptions to the
prohibition on discharge of pollutants. Among them are
two permitting schemes that authorize certain entities to
discharge pollutants into navigable waters. See Rapanos
v. United States, 547 U.S. 715, 723 (2006) (plurality opin­
ion). The first is the National Pollutant Discharge Elimi­
nation System (NPDES) program, which is administered
by the EPA under §1342. Under that program, the EPA
issues permits allowing persons to discharge pollutants
that can wash downstream “upon [the] condition that such
discharge will meet . . . all applicable requirements under
sections 1311, 1312, 1316, 1317, 1318, and 1343.”
§1342(a)(1). “NPDES permits impose limitations on the
discharge of pollutants, and establish related monitoring
and reporting requirements, in order to improve the clean­
liness and safety of the Nation’s waters.” Friends of the
Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,
528 U.S. 167, 174 (2000). One such limitation is an “ef­
fluent limitation,” defined in the Act as a “restriction . . .
on quantities, rates, and concentrations” of specified pollu­
tants “discharged from point sources into navigable wa­
ters, the waters of the contiguous zone, or the ocean, in­
cluding schedules of compliance.” §1362(11).
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 (plurality opin­
ion). 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
4 NATIONAL ASSN. OF MFRS. v. DEPARTMENT OF DEFENSE
Opinion of the Court
discharge of fill material. See §1344(c).2
2
The statutory term “waters of the United States” delin­
eates the geographic reach of many of the Act’s substan­
tive 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 permissi­
ble interpretation of the statute but striking down two
others as overbroad. Compare United States v. Riverside
Bayview Homes, Inc., 474 U.S. 121 (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 (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 (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 more consistent approaches for iden­
——————
2 Both permitting programs allow the States to operate their own
permitting schemes to govern waters within their borders. See 33
U.S. C. §§1342(b), 1344(g). Many States have opted to operate an
NPDES permitting program under §1342(b), and two have done so
under §1344(g).
Cite as: 583 U. S. ____ (2018) 5
Opinion of the Court
tifying the geographic scope of the [Act].” Id., at 37057.
To that end, the Rule separates waters into three jurisdic­
tional groups—waters that are categorically jurisdictional
(e.g., interstate waters); those that require a case-specific
showing of their significant nexus to traditionally covered
waters (e.g., waters lying in the flood plain of interstate
waters); and those that are categorically excluded from
jurisdiction (e.g., swimming pools and puddles). See 33
CFR §328.3 (2017); 80 Fed. Reg. 37057. Although the
revised regulatory definition “applies broadly to [the Act’s]
programs,” the WOTUS Rule itself states that it “imposes
no enforceable duty on any state, local, or tribal govern­
ments, or the private sector.” 80 Fed. Reg. 37102. Indeed,
the Rule’s preamble states that it “does not establish any
regulatory requirements” and is instead “a definitional
rule that clarifies the scope of ” the statutory term “waters
of the United States.” Id., at 37054.
B
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 origi­
nal and “exclusive” jurisdiction. Decker v. Northwest
Environmental Defense Center, 568 U.S. 597, 608
(2013). Seven categories of EPA actions fall within that
jurisdictional provision; they include actions of the EPA
Administrator—
“(A) in promulgating any standard of performance un­
der section 1316 of this title, (B) in making any de­
termination pursuant to section 1316(b)(1)(C) of this
title, (C) in promulgating any effluent standard, pro­
hibition, or pretreatment standard under section 1317
of this title, (D) in making any determination as to a
State permit program submitted under section
6 NATIONAL ASSN. OF MFRS. v. DEPARTMENT OF DEFENSE
Opinion of the Court
1342(b) of this title, (E) in approving or promulgating
any effluent limitation or other limitation under sec­
tion 1311, 1312, 1316, or 1345 of this title, (F) in issu­
ing or denying any permit under section 1342 of this
title, and (G) in promulgating any individual control
strategy under section 1314(l) of this title.” 33
U.S. C. §1369(b)(1).
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 proceed­
ing 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.3 Under the
APA, an aggrieved party may file suit in a federal district
court to obtain review of any “final agency action for which
there is no other adequate remedy in a court.” See 5
U.S. C. §704. Those suits generally must be filed within
six years after the claim accrues. 28 U.S. C. §2401(a).
C
Soon after the agencies promulgated the WOTUS Rule,
——————
3 The Act also grants federal district courts jurisdiction over certain
kinds of citizen enforcement actions. See 33 U.S. C. §1365(a); Decker,
568 U.S., at 607–08.
Cite as: 583 U. S. ____ (2018) 7
Opinion of the Court
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 (CA6 2015).
Meanwhile, parallel litigation continued in the District
Courts. Some District Courts dismissed the pending
lawsuits, concluding that the courts of appeals had exclu­
sive jurisdiction over challenges to the Rule. See Murray
Energy Corp. v. EPA, 2015 WL 5062506, *6 (ND W. Va.,
Aug. 26, 2015) (dismissing for lack of jurisdiction); Georgia
v. McCarthy, 2015 WL 5092568, *3 (SD 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 (ND 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
8 NATIONAL ASSN. OF MFRS. v. DEPARTMENT OF DEFENSE
Opinion of the Court
Sixth Circuit and, along with several other parties, moved
to dismiss for lack of jurisdiction.4 The Government op­
posed those motions, arguing that challenges to the
WOTUS Rule must be brought first in the Court of Ap­
peals because the Rule fell within subparagraphs (E) and
(F) of §1369(b)(1). The Court of Appeals denied the mo­
tions to dismiss in a fractured decision that resulted in
three separate opinions. In re Dept. of Defense, 817 F.3d
261 (2016). The Court of Appeals denied rehearing en
banc. We granted certiorari, 580 U. S. ___ (2017), and now
reverse.5
——————
4 Some of the parties who filed protective petitions moved to dismiss
those same petitions, agreeing with NAM that direct review of the
WOTUS Rule belonged in the United States District Courts. Many of
those parties, though nominally respondents before this Court, filed
briefs in support of NAM.
5 There have been a number of developments since the Court granted
review in this case. In February 2017, the President issued an Execu­
tive Order directing the agencies to propose a rule rescinding or revis­
ing the WOTUS Rule. See Exec. Order No. 13778, 82 Fed. Reg. 12497.
On July 27, 2017, the agencies responded to that directive by issuing a
proposed rule. See Definition of “Waters of the United States”—
Recodification of Pre-Existing Rules, 82 Fed. Reg. 34899, 34901–34902.
That proposed rule, once implemented, would rescind the WOTUS Rule
and recodify the pre-2015 regulatory definition of “waters of the United
States.” See ibid. Then, in November 2017, following oral argument in
this case, the agencies issued a second proposed rule establishing a new
effective date for the WOTUS Rule. Definition of “Waters of the United
States”—Addition of an Applicability Date to 2015 Clean Water Rule,
82 Fed. Reg. 55542 (explaining that the 2015 WOTUS Rule had an
original effective date of Aug. 28, 2015). That November 2017 proposed
rule sets a new effective date of “two years from the date of final action
on [the agencies’] proposal,” to “ensure that there is sufficient time for
the regulatory process for reconsidering the definition of ‘waters of the
United States’ to be fully completed.” Id., at 55542–55544.
The parties have not suggested that any of these subsequent devel­
opments 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 “ ‘im­
Cite as: 583 U. S. ____ (2018) 9
Opinion of the Court
II
As noted, §1369(b)(1) enumerates seven categories of
EPA actions that must be challenged directly in the fed­
eral 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 ac­
tions “issuing or denying any [NPDES] permit,”
§1369(b)(1)(F).6 We address each of those statutory provi­
sions in turn.
A
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 Sec­
tion 1311.” Brief for Federal Respondents 18–19. We
disagree.
To begin, the WOTUS Rule is not an “effluent limita­
tion”—a conclusion the Government does not meaningfully
——————
possible for a court to grant any effectual relief . . . to the prevailing
party.’ ” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quoting Knox v.
Service Employees, 567 U.S. 298, 307 (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.
6 It is undisputed that the WOTUS Rule does not fall within the re­
maining five categories set forth in §1369(b)(1).
10 NATIONAL ASSN. OF MFRS. v. DEPARTMENT OF DEFENSE
Opinion of the Court
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 limi­
tation 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 in­
stance, could be a non-numerical operational practice or
an equipment specification that, like an “effluent limita­
tion,” restricts the discharge of pollutants, even though
such a limitation would not fall within the precise statu-
tory definition of “effluent limitation.” That subparagraph
(E) cross-references §§1311, 1312, 1316, and 1345 rein­
forces this natural reading. The unifying feature among
those cross-referenced sections is that they impose re­
strictions on the discharge of certain pollutants. See, e.g.,
33 U.S. C. §1311 (imposing general prohibition on “the
discharge of any pollutant by any person”); §1312 (govern­
ing “water quality related effluent limitations”); §1316
(governing national performance standards for new
sources of discharges); §1345 (restricting discharges and
use of sewage sludge). In fact, some of those sections give
us concrete examples of the type of “other limitation”
Congress had in mind. Section 1311(b)(1)(C) allows the EPA
to issue “any more stringent limitation[s]” if technology­
Cite as: 583 U. S. ____ (2018) 11
Opinion of the Court
based effluent limitations cannot “meet water quality
standards, treatment standards, or schedules of compli­
ance.” And §1345(d)(3) provides that, if “it is not feasible
to prescribe or enforce a numerical limitation” on pollu­
tants in sewage sludge, the EPA may “promulgate a de­
sign, equipment, management practice, or operational
standard.” All of this demonstrates that an “other limita­
tion,” at a minimum, must also be some type of restriction
on the discharge of pollutants. Because the WOTUS Rule
does no such thing, it does not fit within the “other limita­
tion” language of subparagraph (E).
The Government tries to escape this conclusion by argu­
ing 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
(2008) (“Congress’ use of ‘any’ to modify ‘other law en­
forcement 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 pollu­
tants. 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 Gov­
12 NATIONAL ASSN. OF MFRS. v. DEPARTMENT OF DEFENSE
Opinion of the Court
ernment’s liking. Puerto Rico v. Franklin Cal. Tax-Free
Trust, 579 U. S. ___, ___ (2016) (slip op., at 14) (“[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.” 7 §1369(b)(1)(E). This Court has acknowledged that
the word “under” is a “chameleon” that “must draw its
meaning from its context.” Kucana v. Holder, 558 U.S.
233, 245 (2010) (internal quotation marks omitted). With
respect to subparagraph (E), the statutory context makes
clear that the prepositional phrase—“under section
1311”—is most naturally read to mean that the effluent
limitation or other limitation must be approved or prom­
ulgated “pursuant to” or “by reason of the authority of ”
§1311. See St. Louis Fuel and Supply Co., Inc. v. FERC,
890 F.2d 446, 450 (CADC 1989) (R. B. Ginsburg, J.) (“ ‘un­
der’ means ‘subject [or pursuant] to’ or ‘by reason of the
authority of ’ ”); cf. Black’s Law Dictionary 1368 (5th ed.
1979) (defining “under” as “according to”). Here, the EPA
did not promulgate or approve the WOTUS Rule under
§1311. As noted above, §1311 generally bans the dis­
charge of pollutants into navigable waters absent a per­
mit. Nowhere does that provision direct or authorize the
EPA to define a statutory phrase appearing elsewhere in
the Act. In fact, the phrase “waters of the United States”
does not appear in §1311 at all. Rather, the WOTUS Rule
was promulgated or approved under §1361(a), which
——————
7 Because no party argues that the WOTUS Rule is an EPA action
approving or promulgating an effluent limitation or other limitation
under §1312, §1316, or §1345, the Court confines its analysis to §1311.
Cite as: 583 U. S. ____ (2018) 13
Opinion of the Court
grants the EPA general rulemaking authority “to pre­
scribe such regulations as are necessary to carry out [its]
functions under” the Act. Proving the point, the Govern­
ment’s own brief cites §1361(a) as the statutory provision
that “authorized the [EPA] to issue the [WOTUS] Rule.”
Brief for Federal Respondents 17, n. 3.8
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. Subpar­
agraph (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 Govern­
ment’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) (cover­
ing EPA action “in approving or promulgating any effluent
limitation or other limitation under section 1311, 1312,
——————
8 It is true that the agencies cited §1311 among the provisions under
which they purported to have issued the Rule. See 80 Fed. Reg. 37055.
They also cited other provisions, including §§1314, 1321, 1341, 1342,
and 1344. Ibid. As noted, however, §1311 grants the EPA no authority
to clarify the regulatory definition of “waters of the United States.”
Furthermore, the agencies’ passing invocation of §1311 does not control
our interpretive inquiry. See Adamo Wrecking Co. v. United States,
434 U.S. 275, 283 (1978) (Congress “did not empower the Adminis­
trator . . . to make a regulation an ‘emission standard’ by his mere
designation”).
14 NATIONAL ASSN. OF MFRS. v. DEPARTMENT OF DEFENSE
Opinion of the Court
1316, or 1345” (emphasis added)). Section 1311(a) author­
izes 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 effect” on the
scope of §1311’s general prohibition of discharges, as the
Government contends is the case with the WOTUS Rule.
If, on the Government’s reading, EPA actions under
§§1312 and 1316 would count as actions “under section
1311” sufficient to trigger subparagraph (E), Congress
would not have needed to cross-reference §§1312 and 1316
again in subparagraph (E). That Congress did so under­
cuts the Government’s proposed “practical-effects” test.
Similarly, the Government’s “practical-effects” test
ignores Congress’ decision to grant appellate courts exclu­
sive jurisdiction only over seven enumerated types of EPA
actions set forth in §1369(b)(1). Section 1313, which gov­
erns the EPA’s approval and promulgation of state water-
quality 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 (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 pre­
sumed 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
Cite as: 583 U. S. ____ (2018) 15
Opinion of the Court
the WOTUS Rule.
B
The Government fares no better under subparagraph
(F). That provision grants courts of appeals exclusive and
original jurisdiction to review any EPA action “in issu­
ing or denying any permit under section 1342.”
§1369(b)(1)(F). As explained above, NPDES permits
issued under §1342 “authoriz[e] the discharge of pollu­
tants” into certain waters “in accordance with specified
conditions.” Gwaltney of Smithfield, Ltd. v. Chesapeake
Bay Foundation, Inc., 484 U.S. 49, 52 (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 (2004)
(plurality opinion).
Rather than confront that statutory text, the Govern­
ment 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 (1980) (per
curiam). Brief for Federal Respondents 31. Crown Simp-
son, the Government says, broadens the statutory inquiry
under subparagraph (F) by directing courts to ask whether
agency actions are “ ‘functionally similar’ ” to permit issu­
ances or denials. Brief for Federal Respondents 33 (quot­
ing Crown Simpson, 445 U.S., at 196). 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
Crown Simpson and ignores the statutory text.
First, Crown Simpson provides scant support for the
16 NATIONAL ASSN. OF MFRS. v. DEPARTMENT OF DEFENSE
Opinion of the Court
Government’s atextual construction of subparagraph (F).
In that case, the Court held that subparagraph (F) con­
ferred jurisdiction over the EPA’s veto of a state-issued
permit. See 445 U.S., at 196. The Court explained that
“[w]hen [the] EPA . . . objects to effluent limitations con­
tained in a state-issued permit, the precise effect of its
action is to ‘den[y]’ a permit within the meaning of [sub­
paragraph F].” Ibid. Contrary to the Government’s sug­
gestion, 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 there­
fore 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. Con­
gress 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 ac­
tions “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 ___ (slip
op., at 14).
Finally, the Government’s interpretation of subpara­
graph (F) would create surplusage in other parts of
§1369(b)(1). Subparagraph (D) is one example. That
provision gives federal appellate courts original jurisdic­
Cite as: 583 U. S. ____ (2018) 17
Opinion of the Court
tion 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 sur­
plusage, 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 (1979).
For these reasons, subparagraph (F) does not grant
courts of appeals exclusive jurisdiction to review the
WOTUS Rule in the first instance.
III
A
Unable to anchor its preferred reading in the statutory
text, the Government seeks refuge in a litany of extratex­
tual 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 Rule would avoid an irrational
bifurcated judicial-review scheme under which federal
courts of appeals would review individual actions issuing
or denying permits, whereas district courts would review
broader regulations governing those actions. In E. I. du
Pont de Nemours & Co. v. Train, 430 U.S. 112 (1977), the
Court described such a bifurcated regime as a “truly per­
verse situation.” Id., at 136. And a few years later, in
Crown Simpson, the Court declared that “[a]bsent a far
18 NATIONAL ASSN. OF MFRS. v. DEPARTMENT OF DEFENSE
Opinion of the Court
clearer expression of congressional intent, we are unwill­
ing to read the Act as creating such a seemingly irrational
bifurcated system.” 445 U.S., at 197. Unlike in Crown
Simpson, however, here the Court perceives such a “clea[r]
expression of congressional intent.” Ibid. Even if the
Court might draft the statute differently, Congress made
clear that rules like the WOTUS Rule must be reviewed
first in federal district courts. Moreover, the bifurcation
that the Government bemoans is no more irrational than
Congress’ choice to assign challenges to NPDES permits to
circuit courts, and challenges to §1344 permits to district
courts. See 33 U.S. C. §1369(b)(1)(E). And notably, many
of this Court’s recent decisions regarding the agencies’
application and definition of the term “waters of the United
States” have originated in district courts, not the courts
of appeals. See, e.g., Army Corps of Engineers v. Hawkes
Co., 578 U. S. ___ (2016); Sackett v. EPA, 566 U.S. 120
(2012); Rapanos, 547 U.S., at 729 (plurality opinion).
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 di-
rectly to the courts of appeals may improve judicial efficiency.
See Crown Simpson, 445 U.S., at 197 (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 Indus-
tries, Inc., 446 U.S. 578, 593 (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 Con­
gress’ only consideration. Had Congress wanted to priori­
tize 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
Cite as: 583 U. S. ____ (2018) 19
Opinion of the Court
“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 juris­
diction to review many types of EPA action, including the
WOTUS Rule.
Third, the Government contends that “initial review in a
court of appeals” promotes “ ‘[n]ational uniformity, an
important goal in dealing with broad regulations.’ ” Brief
for Federal Respondents 35 (quoting National Resources
Defense Council v. EPA, 673 F.2d 400, 405, n. 15 (CADC
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 for the
challenges filed in district courts, leading to some conflict­
ing outcomes. But even if Congress sought to ensure
national uniformity, it did not pursue that end at all costs.
Although §1369(b)(1) does not authorize immediate
circuit-court review of all national rules under the Act, it
does permit federal appellate courts to review directly
certain effluent and other limitations and individual
permit decisions. See, e.g., §§1369(b)(1)(E), (F). It is true
that Congress could have funneled all challenges to na­
tional rules to the courts of appeals, but it chose a different
tack here: It carefully enumerated the seven categories
of EPA action for which it wanted immediate circuit-
court review and relegated the rest to the jurisdiction of
the federal district courts.
Ultimately, the Government’s policy arguments do not
obscure what the statutory language makes clear: Sub­
20 NATIONAL ASSN. OF MFRS. v. DEPARTMENT OF DEFENSE
Opinion of the Court
paragraphs (E) and (F) do not grant courts of appeals
exclusive jurisdiction to review the WOTUS Rule.
B
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. Accord­
ing to the Government, when a direct-review provision like
§1369(b)(1) exists, this Court “will not presume that Con­
gress 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 (1985).
But the Government’s reliance on Florida Power is mis­
placed. Unlike the “ambiguous” judicial review provisions
at issue in Florida Power, id., at 737, the scope of subpar­
agraphs (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. Here,
Congress’ intent is clear from the statutory text.9
IV
For the foregoing reasons, we reverse the judgment
of the Court of Appeals and remand the case with in-
structions to dismiss the petitions for review for lack of
jurisdiction.
It is so ordered.
——————
9 Although the parties paint dueling portraits of the legislative his­
tory, the murky waters of the Congressional Record do not provide
helpful guidance in illuminating Congress’ intent in this case. Even for
“[t]hose of us who make use of legislative history,” “ambiguous legisla­
tive history” cannot trump “clear statutory language.” Milner v. De-
partment of Navy, 562 U.S. 562, 572 (2011). Just so here.