Industry and many states are asking the U.S. Supreme Court to decide a critical jurisdictional matter related to the Clean Water Rule ((CWR), June 29, 2015, Federal Register (FR) promulgated by the EPA and the U.S. Army Corps of Engineers (Corps). More commonly called the waters of the United States (WOTUS) rule, the action provided the most specific and possibly most expansive definitions yet of which waters are WOTUS. While challenges to the WOTUS rule will ultimately be based on arguments concerning the merits—that is, whether contents of the rule itself are legal—the question of whether the federal district courts or the federal circuit courts should hear those challenges needs to be settled first.
Addressing this issue, a panel of the U.S. Court of Appeals for the 6th Circuit found in February 2016 that the relevant section of the Clean Water Act restricts the legal challenges to the courts of appeal, the position taken by the EPA/Corps. The ruling was highly fractured at 1–1–1. One judge found that the CWA section should be read to limit challenges in the circuit courts. A second judge found no such meaning in the section and asserted that the district courts also had jurisdiction. The third judge agreed with the second judge but decided to support the positions of the first judge and the EPA/Corps because they conform to a prior ruling by the 6th Circuit. Industry with the support of 30 states have now asked the U.S. Supreme Court to overturn the 6th Circuit’s opinion.