Court to Hear WOTUS

OMAHA (DTN) -- The U.S. Court of Appeals for the Sixth Circuit in Cincinnati ruled it has jurisdiction to hear numerous legal challenges to the waters of the United States rule on Monday.

In the court's majority opinion, Judge David W. McKeague wrote that because federal district courts issued conflicting rulings on a number of cases last year, the Sixth Circuit should hear many of the challenges levied by states and a variety of industry groups, including those in agriculture.

The Sixth Circuit issued a national injunction of the rule last year, putting it on hold until legal issues could be resolved. Many legal experts believe the rule ultimately will be decided by the U.S. Supreme Court. In a ruling last year, the Sixth Circuit Court was highly critical of the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers in the development and finalization of the rule.

Agriculture and other industry groups have expressed opposition to the rule for fear it would give the federal government more control of farmers' and other landowners' property.

In the ruling announced Monday, Judge McKeague said it would make legal sense for the Sixth Circuit to consider the case.

"The Clean Water Rule is intended to clarify the scope of 'the waters of the United States' subject to protection under the Clean Water Act," according to the court's ruling. "The act provides that certain specified actions of the EPA administrator are reviewable directly in the U.S. Circuit Courts of Appeals.

"...Many of the petitioners and other parties now move to dismiss the very petitions they filed invoking this court's jurisdiction, contending this court lacks jurisdiction to review the Clean Water Rule...Over the last 35 years, however, courts, including the Supreme Court and the Sixth Circuit, have favored a 'functional' approach over a 'formalistic' one in construing these provisions. These precedents support the agencies' position that this court does have jurisdiction.

"The district courts that have confronted the jurisdictional question in this litigation have arrived at conflicting answers. For the reasons that follow I conclude that Congress's manifest purposes are best fulfilled by our exercise of jurisdiction to review the instant petitions for review of the Clean Water Rule."

Judge Richard Allen Griffin wrote in a concurring opinion that he would have voted against EPA's motion to dismiss the cases in favor of allowing district courts to hear legal challenges, if it wasn't for a 2009 Sixth Circuit ruling in National Cotton Council of America v EPA where the court struck down a Clean Water Act permitting exemption of applying pesticides to water.

"I concur in the judgment holding that we possess subject-matter jurisdiction in this case; thus, I join in denying petitioners' motions to dismiss," Griffin wrote. "However, I do so only because I am required to follow our precedentially-binding decision, National Cotton Council of America v. U.S. E.P.A., 553 F.3d 927 (6th Cir. 2009). Were it not for National Cotton, I would grant the motions to dismiss.

"Whether it is desirable for us to possess jurisdiction for purposes of the efficient functioning of the judiciary, or for public policy purposes, is not the issue. Rather, the question is whether Congress in fact created jurisdiction in the courts of appeals for this case. I conclude that it did not."

DISSENTING OPINION

In his dissent, Senior Judge Damon J. Keith wrote believes the rule before the court is different from the issue at hand in the National Cotton case.

"While National Cotton expanded the scope of subsection (F) to cover rules 'regulating' or 'governing' permitting procedures, 553 F.3d at 933, it did not expand that subsection to cover all rules 'relating' to those procedures, such as the one at issue here," he writes, "a rule that merely defines the scope of the term 'waters of the United States.' That a rule 'relates' to a permitting procedure does not mean that it 'regulates' or 'governs' that procedure."

California-based attorney Paul Beard with Alston and Bird's environment, land use and natural resources practice group, said in a statement to DTN/Progressive Farmer he believes the Sixth Circuit court reached the wrong decision.

"The court of appeals' decision to hear the merits of the WOTUS rule challenge is disappointing for property owners across the country whose lands may be subject to Clean Water Act regulation," he said.

"... The decision is wrong on the merits. By the plain terms of the Clean Water Act, this litigation belongs in the district courts, not in the appeals courts."

In addition, Beard said, "... the court of appeals' decision to decide the merits of the challenge puts it on a faster track to the U.S. Supreme Court, where, because of the rule's national importance, this case will almost certainly land."

Beard said the death of Supreme Court Justice Antonin Scalia could make it more likely for the rule to remain in effect.

"With Justice Scalia's untimely passing, the court's 5-4 balance in favor of robust review of sweeping environmental rules like the WOTUS rule is no more," Beard said. "And in the near time, it is not clear that the votes exist on the high court to make the right decision and set aside the rule."

Some 30 states have sued the EPA and the Army Corps of Engineers to stop the rule's enforcement. In a ruling last year the Sixth Circuit Court said it believes the plaintiffs have demonstrated their legal claims could be successful.

Exactly how long the stay will last is not known.

The states and other plaintiffs have argued the federal government arbitrarily set distance limitations when determining adjacent waters, tributaries and "significant nexus" in the final rule, providing no basis in science. The court said EPA and the Corps of Engineers failed to identify "specific scientific support substantiating the reasonableness of the bright-line standards they ultimately chose."

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @ToddNeeleyDTN

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