On February 22, a divided Sixth Circuit Court of Appeals ruled that it has jurisdiction to hear suits over the joint US EPA and US Army Corps of Engineers’ controversial amendment to the definition of “waters of the United States.” Murray Energy Corp. v. US Dep’t of Def. et al., Slip op., No. 15-3751 (6th Cir., Feb. 22, 2016) (and related cases). The definition of “waters of the United States” (“WOTUS”) establishes the bounds of federal jurisdiction under the Clean Water Act (“CWA”), which has been has been in a state of uncertainty since the US Supreme Courts’ plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006). (Additional details regarding the final WOTUS rule are available here).  Over a dozen challenges were filed in federal district and appellate courts, owing to uncertainty over which courts (district or appellate) CWA § 509 vests with jurisdiction.  The Federal Panel on Multi-District Litigation consolidated appeals filed in the appellate courts in the Sixth Circuit, but declined to consolidate the district court cases.

The Sixth Circuit concluded that it had jurisdiction under CWA §§ 1369(b)(1)(E) and (F), which vest the appellate courts with jurisdiction over challenges to “an effluent limitation or other limitation” and “issu[ance] or den[ial of] a permit,” respectively. The Court acknowledged that the WOTUS rule did not itself constitute a limitation or permit action, but reasoned that the “practical effect will be to indirectly produce various limitations on point-source operators and permit issuing authorities.”  Slip op. at 11.  The Sixth Circuit found that this indirect relationship was sufficient to confer jurisdiction under the US Supreme Court’s decisions in E.I. du Pont de Nemours Co. v. Train, 430 U.S. 112 (1977), and Crown Simpson Pulp Co. v. Costle, and the Sixth Circuit’s prior decision in Nat’l Cotton Council v. EPA., 553 F.3d 927, 933 (6th Cir. 2009).  The decision was split, with Judge McKeague taking an expansive view of Nat’l Cotton and Judge Keith taking a narrower view.  Judge Griffith sided with Judge McKeague in finding jurisdiction, but noted he only did so because of the binding effect of Nat’l Cotton.

Industry Petitioners have already filed a petition for rehearing en banc, citing a split in the circuit courts regarding jurisdiction and the conflicting views on the scope and precedential weight of Nat’l Cotton.  Multiple State Petitioners similarly filed a petition for rehearing en banc.  The petitions for rehearing add yet another layer of complication for cases pending at the district court level, which have been left in a state of uncertainty following the Sixth Circuit’s jurisdictional determination. Only one pending district court case falls within the Sixth Circuit, but one district court outside of the Sixth Circuit has already dismissed its case for lack of jurisdiction following the Sixth Circuit’s decision.  See State of Oklahoma v. EPA, No. 15-0381 (N.D. Oklahoma).  This ruling, and any others that may follow, will be called into question if en banc review is granted and the full Sixth Circuit finds it lacks jurisdiction.

It is widely expected that the legality of the new “waters of the United States” definition will ultimately be decided by the US Supreme Court.  In the meantime, there is the potential that litigation will proceed in both the Sixth Circuit and various district courts in parallel.  The potential for a patchwork of conflicting opinions in various jurisdictions will ensure the scope of federal authority under the CWA remains in limbo for the foreseeable future.