WOTUS Suits Remain in Sixth Circuit

Legal Challenges to Waters of US Rule to Continue Into 2017

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The waters of the U.S. 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. (DTN file photo by Chris Clayton)

OMAHA (DTN) -- The waters of the United States, or WOTUS, rule legal battle will be allowed to play out in the U.S. Court of Appeals for the Sixth Circuit in Cincinnati. This is after the U.S. Court of Appeals for the 11th Circuit in Atlanta ordered a stay of a legal challenge in that court Monday.

The Sixth Circuit previously ruled it had jurisdiction to hear numerous legal challenges to the rule. More than 30 states as well as many industries, including agriculture, believe the rule represents an unconstitutional expansion of U.S. Environmental Protection Agency jurisdiction.

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 court in Atlanta held oral arguments in July in an 11-state lawsuit challenging the rule. Georgia, Kentucky, Kansas, West Virginia, South Carolina, Alabama, Wisconsin, Utah, Indiana, North Carolina and Florida asked the court to overturn the Sixth Circuit on the question of jurisdiction.

The Sixth Circuit in Cincinnati stayed the WOTUS rule nationally in October 2015, pending its review. The Sixth Circuit already is moving forward with consolidating numerous cases into a single case, likely to play out in 2017.

In its ruling issued Monday, the 11th Circuit in Atlanta said it had no reason to continue to hear the 11-state lawsuit.

"If there were an exhibition hall for prudential restraint on the exercise of judicial authority, this case could be an exemplar in the duplicative litigation wing," the court said in its order.

"The case before us and the case before the Sixth Circuit involve the same parties on each side, the same jurisdictional and merits issues, and the same requested relief ... It would be a colossal waste of judicial resources for both this court and the Sixth Circuit to undertake to decide the same issues about the same rule presented by the same parties. And the Sixth Circuit is the obvious court to proceed to decision because it is significantly farther along the decisional path than we are."

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.

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

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

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(AG/ES)

Todd Neeley