Court Puts WOTUS Cases on Hold

Legal Challenge to Waters of US Rule Left to SCOTUS

Todd Neeley
By  Todd Neeley , DTN Environmental Editor
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An appeals court Wednesday put on hold a number of legal challenges to the waters of the United States rule. (DTN file photo by Chris Clayton)

OMAHA (DTN) -- The U.S. Court of Appeals for the Sixth Circuit in Cincinnati has put the legal fight on the waters of the United States, or WOTUS, rule on hold pending a review by the U.S. Supreme Court, according to an order handed down Wednesday.

The U.S. Supreme Court last week granted a request to hear a legal challenge by the National Association of Manufacturers and other plaintiffs as to whether the appeals court is the proper venue for a number of lawsuits filed against the rule. That appeals court ruling had led to more than 100 cases being consolidated in the Sixth Circuit. Although the high court granted the petition, the case does not get to the merits of the rule itself.

On Monday, the plaintiffs asked the appeals court to put the cases on hold, especially in light of the Trump administration's recent actions on federal regulations. Earlier this week, the administration issued a regulations freeze.

"Continuing with costly and burdensome briefing and appendix preparation while the Supreme Court considers whether this court has jurisdiction over the petitions is especially unnecessary in light of the new administration's repeated promises to reconsider the WOTUS rule," the plaintiffs said in a court motion filed Monday.

"The new administration's statements raise the possibility that, even assuming the Supreme Court holds that this Court has jurisdiction, this court will never need to address the current rule in the current procedural posture."

Farm groups have been closely monitoring the legal challenges to the controversial rule change to the Clean Water Act, which the groups see as a major expansion of EPA authority. At least 30 states and multiple industries have sued in cases across the country.

The Sixth Circuit has placed the rule on hold nationally. A number of lawsuits were filed in district courts across the country.

Thirteen states sued EPA over the rule in the U.S. District Court for the District of North Dakota, where originally those states received a stay on the rule. The Sixth Circuit Court of Appeals issued a national stay while considering the legal merits of additional multiple cases filed there.

A February 2016 ruling by the Sixth Circuit 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. There are 22 petitions for review involving more than 150 petitioners, according to court documents from the Sixth Circuit.

The WOTUS rule was touted by the EPA as a means to clarify which areas around waterways 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 Sixth Circuit stayed the rule nationally in October 2015, pending its review.

Agricultural and other industry groups were unconvinced legal challenges to the rule should be heard by the Sixth Circuit. Judges in that court have indicated in previous rulings they may be sympathetic to those groups that claim the rule is a flawed federal overreach. However, opponents of the rule fear that if legal challenges to the WOTUS rule are tried in the wrong jurisdiction, any rulings could face appeals.

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Todd Neeley

Todd Neeley
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