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October 18, 2016
States argue jurisdiction in WOTUS case

Industry and many states are asking the U.S. Supreme Court to decide a critical jurisdictional matter related to the Clean Water Rule ((CWR), June 29, 2015, Federal Register (FR) promulgated by the EPA and the U.S. Army Corps of Engineers (Corps). More commonly called the waters of the United States (WOTUS) rule, the action provided the most specific and possibly most expansive definitions yet of which waters are WOTUS. While challenges to the WOTUS rule will ultimately be based on arguments concerning the merits—that is, whether contents of the rule itself are legal—the question of whether the federal district courts or the federal circuit courts should hear those challenges needs to be settled first.

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6th Circuit decided

Addressing this issue, a panel of the U.S. Court of Appeals for the 6th Circuit found in February 2016 that the relevant section of the Clean Water Act restricts the legal challenges to the courts of appeal, the position taken by the EPA/Corps. The ruling was highly fractured at 1–1–1. One judge found that the CWA section should be read to limit challenges in the circuit courts. A second judge found no such meaning in the section and asserted that the district courts also had jurisdiction. The third judge agreed with the second judge but decided to support the positions of the first judge and the EPA/Corps because they conform to a prior ruling by the 6th Circuit. Industry with the support of 30 states have now asked the U.S. Supreme Court to overturn the 6th Circuit’s opinion.

CWA section 1369(b)

According to the EPA/Corps, CWA section 1369(b) provides that the CWR is reviewable only by the circuit courts. Section 1369(b)(1) states that circuit-only reviews apply to seven specific regulatory actions. Section 1369(b) also bars later “judicial review” of actions that fall within the section’s purview in any subsequent civil or criminal proceeding for enforcement. In other words, once a circuit court rules on a matter covered by section 1369(b), no further court reviews may occur. Such a situation would severely limit the kinds of challenges that can be mounted against the CWR. Petitioners also believe their chances of success are better if they can drag the agencies into the many district courts rather than relying on judgments of a far fewer number of circuit courts.

Five-part argument

In their supporting brief to the Supreme Court, attorneys with the 30 states opposing the CWR offer five reasons the 6th Circuit’s jurisdictional holding is wrong.


  • First, section 1369(b)(1) does not list an action that comports with the WOTUS rule. The EPA/Corps point to two specific sections applicable to the CWR. One comprises “effluent limits and other limitations” promulgated under other sections of the CWA. The second applies to permits issued under the national pollutant discharge eliminations system (NPDES). The states assert that the CWR is a definitional rule only, not an effluent limitation or a permit.
  • Second, refuting policy concerns that support the EPA/Corps’ position, section 1369(b) specifically identifies seven EPA actions subject to immediate appellate jurisdiction. “It is unlikely that Congress would have intended for this precise language to be interpreted loosely,” say the states.
  • Third, the 6th Circuit’s decision complicates a relatively straightforward jurisdictional statute, in violation of the principle that courts should read a jurisdictional statute to yield “simple” rules.
  • Fourth, the 6th Circuit ruling expands section 1369(b) in a way that restricts review under the Administrative Procedures Act (APA). The APA established a “presumption of reviewability for all final agency action.” But section 1369(b)(2) bars later judicial review of actions that fall within section 1369(b)’s purview in a subsequent civil or criminal proceeding for enforcement. Given these restrictions, courts have refused to read section 1369(b) broadly.
  • Fifth, the lead opinion’s analysis rests on a mistaken premise that was rejected by a majority of the judges on the 6th Circuit panel.

“At the day’s end, the 6th Circuit’s jurisdictional holding conflicts with section 1369’s text and will have negative effects on the scope of judicial review under the Clean Water Act,” say the states. “This holding was mistaken.”

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