Courting WOTUS


All eyes are on the U.S. Court of Appeals for the Sixth Circuit, and to a lesser extent on the Eleventh Circuit, that is expected to rule any day on whether three dozen challenges to the WOTUS rule will be heard in a federal district or an appellate court.

WOTUS in everyday speak refers to the rule redefining which waters and wetlands fall under Clean Water Act protection. Proposed jointly by the Environmental Protection Agency and the U.S. Army Corps of Engineers, the rule, which took effect Aug. 29, has been challenged by 32 states, and a host of national agriculture, business, mining, road and home builder groups. 

The Sixth Circuit already held oral arguments on Dec. 9 about the question of the court’s venue, while the Eleventh Circuit is scheduled to hear oral arguments on Feb. 23 in Atlanta.

These two appellate courts could reach different conclusions on the matter, which may make the question ripe for U.S. Supreme Court review.

And this does not even get to the heart of the complaints challenging the merits of the rule prompting at least one attorney—Sam Brown of Hunton & Williams LLP—to describe this case as the “mother of all procedural cases.”

The Sixth Circuit’s decision carries more weight because in October it stayed the rule nationwide, pending its decision on the venue, as I reported Nov. 12 in Daily Environment Report (story for subscribers here). The Eleventh Circuit issued no such stay.

If the Sixth Circuit decides to retain jurisdiction then the nationwide ban on the rulemaking would remain. But that ban would be lifted if the jurisdiction is moved to a district court.

Moreover, the nationwide ban would be replaced by a stay the U.S. District Court for the District of North Dakota issued for 13 states in August, resulting in regulatory “chaos.”

To complicate matters further, if the Sixth Circuit decides, and the Eleventh Circuit concurs later on, that the venue doesn’t belong in an appeals court then about three dozen district courts will be involved in hearing challenges to WOTUS.

Why is that the case? It’s because the Clean Water Act is unclear about where challenges to rules under that statute should be heard. Section 509 (b)(1) of the Clean Water Act allows challenges to effluent limits and permit issuance or denials to be heard in appellate courts. However, the Administrative Procedure Act very clearly allows judicial review to occur in a district court for a “final agency action for which there is no other adequate remedy in a court.”

Opponents say the WOTUS rule doesn’t fall under the category of a permit or an effluent limit and should be heard in a district court. The government disagrees.

The Republican-controlled Congress, which could ease this confusion by changing the statute, seems more interested in overturning the WOTUS rule, which they see as an overreach of executive authority, rather than any attempts to amend the Clean Water Act. 

In the meantime, we can “Blame it on the Rain” like Milli Vanilli did in 1989.

By Amena H. Saiyid at