The U.S. Supreme Court recently heard oral arguments stemming from the definition of the term ‘waters of the United States’, commonly known as the WOTUS rule. The case revolves around legal challenges to the WOTUS rule and whether federal appeals courts or district courts have jurisdiction.
The coalition that has been representing the agriculture industry is led by the National Association of Manufacturers and is comprised of other farm and business groups along with some environmental organizations. They contend that WOTUS challenges should be heard in district courts because the rule does not fall within the specific categories of the Clean Water Act which would call for appellate court review.
Counsel to the federal government argues for a functional interpretation of the language used in the Clean Water Act which would require challenges to be litigated in the courts of appeals. They claim the WOTUS rule created appropriate boundaries in the Clean Water Act’s ban on pollutant discharges and the Environmental Protection Agency’s permitting authority, therefore do not meet the criteria to be heard in district courts.
The jurisdictional decision alone has been slowly progressing for over a year, as authority needs to be determined before any type of challenge can be made to the substance of the WOTUS rule. There have already been dozens of lawsuits pertaining to the WOTUS rule filed in both appeals and districts courts. In January of this year, the Supreme Court announced they would hear the case regarding which venue will hold the authority. The Justices finally began hearing opening remarks on October 11th.
A decision on where future challenges to rules established in the Clean Water Act will be determined is not expected to be issued until early 2018. The eventual decision will have significant effects pertaining to resources necessary to litigate challenges and will also establish a statute of limitations for filing lawsuits.