Industry optimistic about Supreme Court hearing on WOTUS jurisdictionIndustry optimistic about Supreme Court hearing on WOTUS jurisdiction
High court hears arguments on whether "waters of the U.S." rule challenge should start in federal or district courts.
October 13, 2017
The U.S. Supreme Court heard oral arguments in a case brought by dozens of agricultural organizations, businesses and municipalities against a Clean Water Act rule that would give the government broad jurisdiction over land and water. After oral arguments were held Oct. 10, it appears that the Supreme Court might allow federal district courts to handle legal challenges to the waters of the U.S. (WOTUS) rule, which is exactly the outcome many farm groups are seeking.
The WOTUS rule, which took effect Aug. 28, 2015, was proposed in April 2014 by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers to clarify their authority over various waters. The regulation broadened the agencies’ control from “navigable” waters and waters with a significant hydrologic connection to navigable waters to include, among other water bodies, upstream waters and intermittent and ephemeral streams such as the kind farmers use for drainage and irrigation. It also covered lands adjacent to such waters.
In October 2015, the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, Ohio, issued a stay on implementation of the regulation, pending the disposition of numerous lawsuits filed in U.S. district courts around the country. Last year, however, the Sixth Circuit consolidated the suits under its jurisdiction.
The law stipulates that appeals courts have jurisdiction over challenges to "any effluent limitation or other limitation," as well as permit approvals or denials. Other legal disputes go to district courts. The agricultural groups argued to the Supreme Court that U.S. district courts are the proper venue to hear challenges to the WOTUS rule.
Scott Yager, National Cattlemen’s Beef Assn. environmental counsel, said if the Supreme Court rules against the agricultural groups, cases would no longer be able to trickle up the district court levels to the appellate level. That “would actually deprive us of the ability to have as many opportunities as we can to have courts hear our issues,” Yager said on the steps of the U.S. Supreme Court building following arguments Tuesday.
On the other side of the dispute are the Trump Administration, Natural Resources Defense Council and National Wildlife Federation. They argue that challenges fall within the purview of appeals courts because the rule established the boundaries of the Clean Water Act's ban on pollutant discharges and EPA's permitting authority.
Yager expressed confidence for the ruling to go in agriculture’s favor as questioning from both the liberal and conservative judges pointed to the judges siding with the groups that brought the challenge. The fight will likely come down to how literally the court's nine justices read the language of the Clean Water Act.
Yager said if it is a unanimous decision, the final decision could be released as soon as four to five weeks. If there is a dissenting opinion, it could be January or February before the final determination is made.
The National Pork Producers Council said the high court is expected to issue its ruling in the case before its term ends next June.
EPA recently proposed rescinding the rule and going back to the drawing board with stakeholders.
Yager did note that if EPA officially rescinds the 2015 WOTUS rule before the Supreme Court issues a decision, it would be a moot case. He said if the court was to issue a decision, it optimally would do it on the same day or not after EPA makes an official notice on rescinding the EPA rule.
EPA and the Corps will hold a teleconference at 1-3 p.m. (Eastern) Oct. 18 to take input from agricultural stakeholders on revising the definition of a water of the U.S. The agencies also will accept written recommendations from the public, which must be received on or before Nov. 28. For more information and to register for the agriculture teleconference, or for information on submitting written recommendations, click here.
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