WOTUS Case Update

WOTUS to Remain in Sixth Circuit

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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Opponents of the waters of U.S. rule claim the rule would give the EPA and U.S. Army Corps of Engineers broad authority over basic farming practices simply because water may pool somewhere after a rain or fill a ditch. (DTN file photo by Richard Oswald)

OMAHA (DTN) -- There will be no hearing of the full U.S. Court of Appeals for the Sixth Circuit on the waters of the United States rule as a result of an order issued Thursday by the court in Cincinnati.

Instead of the entire 23-judge court reviewing the case, the illegal future of the rule will remain in the hands of a three-judge panel. Ag groups, states and others that had sued over the Clean Water Act rule were pushing for an "en banc" hearing, meaning they essentially wanted all 23 judges of the Sixth Circuit Court to rehear the arguments on jurisdiction.

"The court received six petitions for rehearing en banc," the court said in an order issued Thursday. "The original panel has reviewed the petitions for rehearing and concludes that the issues raised in the petitions were fully considered upon the original submission and decision of the cases.

"The petitions then were circulated to the full court. No judge has requested a vote on the suggestion for rehearing en banc. Therefore, the petitions are denied."

The waters of the U.S. rule, commonly called WOTUS, was meant to clarify EPA and U.S. Army Corps of Engineers authority over areas around waterways where the federal government has authority to either require a federal permit or stop any activity that would disturb the waterway. Opponents claim the rule would give the regulatory agencies broad authority over basic farming practices simply because water may pool somewhere after a rain or fill a ditch.

The battle over the rule continues to play out on several fronts. President Barack Obama vetoed legislation earlier this year that would have sent EPA and the Army Corps back to the drawing board in drafting a rule. On Thursday, a vote that would have prevented the agencies from implementing the rule got 56 votes but failed because it needed 60 votes to get into legislation.

In the court case, a number of industry groups led by the American Farm Bureau Federation filed the fairly unique request with the court for rehearing en banc on motions to dismiss the consolidated group of cases. Instead, industry groups wanted to allow cases around the country to revert back to the individual district courts.

Agricultural and other industry groups are unconvinced legal challenges to the rule should be heard by the Sixth Circuit Court even though judges have indicated in previous rulings they may be sympathetic to those groups that claim the rule is a flawed federal overreach.

A February ruling by the court indicated a split among three justices about whether it was correct to use a pesticide sprayer case, National Cotton Council v. EPA, as a precedent for determining questions of jurisdiction. In the 2009 National Cotton Council case, the Sixth Circuit threw out an EPA rule that would have exempted pesticides sprayed on water from the Clean Water Act rules. Instead, the decision led to states requiring farmers across the country to get permits to spray pesticides.

In the petition for en banc review, Farm Bureau and other groups said the current case on WOTUS could be subject to an appeal because the justices did not reach a consensus on the National Cotton Council case. A three-judge panel issued what the groups believe to be a splintered decision in the cotton case, raising concerns about "the future course of all of those cases."

There has been disagreement about which court has jurisdiction in the various cases filed at both the district and appeals court levels. It is this ongoing conflict between the district and appeals courts that has agriculture interest groups concerned that any Sixth Circuit decision on the legal merits at some point could be overturned.

Since 2000, the number of cases heard en banc has been declining, according to the Administrative Office of the U.S. Courts. In 2000, the circuit courts of appeal ruled on 73 cases en banc. That equates to 0.27% of their overall dispositions, or just over one-quarter of 1% of the caseload. In 2010, just 44 cases were decided on the merits en banc, according to the Administrative Office of the U.S. Courts.

Agriculture groups asking for the review include National Pork Producers Council, American Forest and Paper Association, AFBF, American Petroleum Institute, National Mining Association, National Association of Realtors, National Corn Growers Association, National Association of Home Builders, National Stone Sand and Gravel Association, American Road and Transportation Builders Association, Greater Houston Builders Association, Leading Builders of America, Matagorda County Farm Bureau, National Alliance of Forest Owners, National Cattlemen's Beef Association, Public Lands Council, Texas Farm Bureau and the U.S. Poultry and Egg Association.

Todd Neeley can be reached at Todd.Neeley@DTN.com

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(CC/AG)

Todd Neeley