WATER POLICY: Judges signal WOTUS case belongs in appeals court
Tiffany Stecker, E&E reporter
Published: Tuesday, December 8, 2015

CINCINNATI -- Federal judges today appeared leaning toward keeping lawsuits challenging the Obama administration's controversial Waters of the U.S. rule in an appeals court rather than district courts across the country as requested by the regulation's challengers.

A three-judge 6th U.S. Circuit Court of Appeals panel heard arguments on the narrow question of whether challenges to the rule -- which seeks to establish which streams and wetlands qualify for federal Clean Water Act protections -- belong in appeals courts or district courts.

Opponents of the rule -- 18 states, plus agricultural and industry groups -- argue district courts have jurisdiction over the cases. They contend that the WOTUS rule does not meet specific criteria in the Clean Water Act that authorizes cases to be filed directly to appellate courts.

Ohio's solicitor, Eric Murphy, representing the states challenging the rule, said the Clean Water Act defines seven factors under which a case must go to an appellate court. However, the broad coverage of the WOTUS rule leaves it outside of the eligible criteria in Section 509(b)(1) of the law for being heard in an appellate court, he said.

The rule "encompasses the full scope of the Act," Murphy said.

The administration's lawyers argued the opposite in hopes of keeping the cases in appellate court, where they will proceed more swiftly.

Justice Department Attorney Martha Mann, representing U.S. EPA and the Army Corps of Engineers, relied on a 6th Circuit ruling in 2009's National Cotton Council v. EPA as the basis for the appeals court jurisdiction.

That case, which upheld EPA's regulation of pesticide spraying over water under the Clean Water Act, went directly to appellate court -- bypassing district courts -- because it dealt with the regulations of effluent, which covers two of the seven factors for an appeals court hearing.

Judge Richard Griffin, a President George W. Bush appointee, appeared to side with that reasoning.

"I see it as a holding, and it's a holding I'm bound by," he said.

Murphy responded that the National Cotton Council case concerned a regulation, rather than a rule that would affect the reading of the Clean Water Act as a whole, like the WOTUS rule.

Judge David McKeague, another Bush appointee, asked if the appeals court would serve as a better venue for a rule with a nationwide application.

"You wouldn't dispute that, would you?" asked McKeague.

"I would absolutely dispute that," Murphy responded emphatically.

Murphy added that the Clean Water Act allows cases to be heard in appeals court that result in "action by the [EPA] administrator."

McKeague disagreed.

"It doesn't say the administrator alone," he said. The rule was jointly developed by EPA Administrator Gina McCarthy and Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy. It was finalized in May.

In her argument, Mann acknowledged the placement of the case in appellate court did not follow the norm for Clean Water Act disputes.

"The vast majority of EPA's Clean Water Act docket is in district court," she said.

Judge Damon Keith, a President Carter appointee, also presided at the arguments.

The 6th Circuit is expected to rule quickly on the jurisdiction issue in the coming months.

Twitter: @TiffanyStecker Email: tstecker@eenews.net
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