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Supreme Court to Hear WOTUS Case
Monday, January 16, 2017 6:40AM CST


By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) -- The U.S. Supreme Court will hear a legal challenge as to whether an appeals court in Cincinnati is the proper venue for a number of lawsuits filed on the waters of the United States, or WOTUS, rule.

On Friday, the high court ruled it would hear a petition by the National Association of Manufacturers, which had challenged a U.S. Sixth Circuit Court of Appeals ruling that it is the proper court to consider the cases. That appeals court ruling had led more than 100 cases being consolidated in the Sixth Circuit.

Although the high court granted the petition Friday, the case is dealing with jurisdiction and does not get to the merits of the waters of the United States rule itself.

M. Reed Hopper, principal attorney for the Pacific Legal Foundation, the group representing plaintiffs in the case, said he believes the high court will determine the Sixth Circuit does not have jurisdiction in the cases.

"The Supreme Court's announcement is encouraging news for millions of landowners nationwide who have been uncertain where to file suits challenging federal regulations that define the scope of the Clean Water Act," Hopper said in a statement. "The Sixth Circuit read the Clean Water Act far too narrowly when it limited jurisdiction over WOTUS challenges to federal appellate courts. We expect the Supreme Court to overturn the Sixth Circuit decision."

Farm groups have been closely monitoring the legal challenges to the controversial rule change to the Clean Water Act, which the groups see as a major expansion of EPA authority. At least 30 states and multiple industries have sued in cases across the country.

"The Supreme Court's decision to hear our appeal is a victory for America's cattle producers and all private property owners across the country," said Scott Yager, National Cattlemen's Beef Association environmental counsel. The NCBA is a party to the legal challenge.

"It shows that the court has a continued interest in private property rights and we look forward to oral arguments this spring," Yager said.

Linda Kelly, NAM senior vice president, general counsel and corporate secretary, said in a statement to DTN it is important to get right the jurisdiction question.

"The Sixth Circuit's decision put challengers to the EPA rule in an untenable position -- if that court does not actually have jurisdiction to hear the case, any action it takes could thereafter be overturned on appeal, without even considering the merits of the challenge, and we would have to start the case over at the trial court level," she said.

"This would be a tremendous waste of resources for manufacturers and others parties affected by the rule, the administration, and the courts. Delaying review of the jurisdictional question, which must ultimately be resolved in any case, makes no sense, so we are very pleased that the Supreme Court decided today to resolve this issue."

The Sixth Circuit has placed the rule on hold nationally. A number of lawsuits were filed in district courts across the country.

Thirteen states sued EPA on the rule in the U.S. District Court for the District of North Dakota, where originally those states received a stay on the rule. The Sixth Circuit Court of Appeals issued a national stay while considering the legal merits of additional multiple cases filed there.

COURT SPLIT

A February 2016 ruling by the Sixth Circuit indicated a split among three justices about whether it was correct to use a pesticide sprayer case, National Cotton Council v. EPA, as a precedent for determining questions of jurisdiction. In the 2009 National Cotton Council case, the Sixth Circuit threw out an EPA rule that would have exempted pesticides sprayed on water from the Clean Water Act rules.

Instead, the decision led to states requiring farmers across the country to get permits to spray pesticides. There are 22 petitions for review involving more than 150 petitioners, according to court documents from the Sixth Circuit.

The Obama administration had argued the Sixth Circuit should consolidate the cases and get a ruling that would allow the lawsuits to move directly to the Supreme Court. State attorneys general, however, wanted to see the cases play out across the country in individual federal district courts and then appealed in multiple regions across the country.

The WOTUS rule was touted by the EPA as a means to clarify which areas around waterways the federal government has authority to either require a federal permit or stop any activity that would disturb the waterway. Opponents claim the rule would give the regulatory agencies broad authority over basic farming practices simply because water may pool somewhere after a rain or fill a ditch.

The Sixth Circuit stayed the rule nationally in October 2015, pending its review.

Agricultural and other industry groups were unconvinced legal challenges to the rule should be heard by the Sixth Circuit. Judges in that court have indicated in previous rulings they may be sympathetic to those groups that claim the rule is a flawed federal overreach. However, opponents of the rule fear that if legal challenges to the WOTUS rule are tried in the wrong jurisdiction, any rulings could face appeals.

President-elect Donald Trump has vowed to cut federal regulations. Trump's nominee to head the EPA, Scott Pruitt, has been an outspoken critic of the agency when he was Oklahoma attorney general.

There has been some question as to how long it may take the next administration to repeal the water rule. If and when the rule is repealed, Congress likely would have to replace the rule to include a definition of navigable waters.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

(ES/AG)


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