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6th Circuit Says It Has Authority to Clarify EPA's WOTUS Rule

By Jonathan R. Tung, Esq. on March 03, 2016 | Last updated on March 21, 2019

If there has ever been a convoluted rule to come from the EPA/Army Corps of Engineers, it's the "Waters of the United States" (WOTUS) rule. Just recently, the Sixth Circuit decided that it had jurisdiction to review the mountain of challenges against the controversial law, and not the Federal district courts.

The rule had been the result of a couple of SCOTUS decisions that the EPA/ACE had flexed too much authoritative muscle in regulating outlying waters. And now, debate over the expansiveness of the law has ballooned into about several dozen different lawsuits by various states and groups.

WOTUS: The Clean Water Rule

A battle has been bubbling over the proper venue of dispute for President Obama's campaign on the Clean Water Act, local courts or the federal district courts first? The Sixth Circuit ruled 2-1, for circuit jurisdiction.

It appeared that the case turned on a 2009 case in the same court which involved the permissible spraying of insecticides. "We're it not for National Cotton," one judge opined, "I would grant the motions to dismiss [out of Circuit jurisdiction]."

The one dissenting judge felt that National Cotton was not even controlling and was the sole dissenting vote on the panel. Of course, it appeared that despite the disagreement, the reasoning behind anyone's decision felt somewhat on shaky ground.

Split Could Lead to En Banc Review

Some attorneys who have expertise in the area think that the split opinions and general disagreement make it likely that the parties might request en banc review by the Sixth Circuit. The fact that two of the judges felt bound by the conclusions of previous cases that might have been, in their opinions, wrongly decided makes predicting the final outcome all that more complicated.

Numerous Challenges

As mentioned, at least 31 lawsuits have been brought challenging WOTUS in courts peppered throughout the United States. The WOTUS rule concerns which United States waterways and streams would enjoy automatic protection under WOTUS. However, the challenging groups have contended that local courts should consider the challenges first before the federal courts hear them. There is concern that the federal courts will comb through the WOTUS challenges and disregard local laws and interests in favor of a unified public water interest.

The ruling is a major step forward for the Obama administration which has been on a wide campaign to push federal environmental regulation.

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