On Friday, October 7, 2016, several industry trade organizations and associations, as respondents, filed a brief requesting that the U.S. Supreme Court review the fractured decision of the Sixth Circuit to exercise jurisdiction over various challenges to the EPA-Army Corps issued Waters of the United States (”WOTUS”) Rule under the Clean Water Act (“CWA”).

At issue is the proper forum for resolving CWA regulatory matters.  The brief explains that agency actions must be brought in district courts according to the Administrative Procedure Act; however, the CWA vests exclusive jurisdiction over specific actions by the EPA Administrator in the courts of appeals.  Conflicting interpretations of this divide of jurisdiction has led to many of the respondents (in addition to other litigants) filing challenges to the WOTUS Rule in district court; whereas other petitions were filed in multiple courts of appeals just to preserve the right to challenge the WOTUS Rule.

In the brief, the respondents emphasized that even though multiple challenges have been lodged in both district and appellate courts regarding the WOTUS Rule’s unlawful attempt to “vastly expand the reach of the CWA,” the merits of the challenges have not yet been litigated because of the “threshold jurisdictional quandary.”  Moreover, the resulting uncertainty in jurisdictional authority was not settled by the Sixth Circuit three judge panel which issued three separate opinions where Judge McKeague wrote the lead opinion, Judge Griffin concurred in the judgment only, and Judge Keith dissented.

Respondents seek clarity from the U.S. Supreme Court on the appropriate jurisdiction for WOTUS appeal on the merits.  In the meantime, EPA continues to implement the WOTUS definition as it did prior to the new rule on appeal.

The brief can be found here.