On Jan. 13 the U.S. Supreme Court granted certiorari, or voted to hear oral arguments, in the case of the Environmental Protection Agency’s (EPA) controversial 2015 “Waters of the United States” (WOTUS) Rule.
The petition for certiorari was filed by the National Association of Manufacturers and challenges the rule that would expand the definition of WOTUS to potentially expand to small waterbodies. The question now before the court is whether such challenges should be first filed in federal district courts or instead in federal courts of appeals. In October 2015, before deciding whether it had jurisdiction to hear this case, the 6th Circuit issued a nationwide preliminary injunction ruling (stay) that the WOTUS regulations are unlawful.
Most federal legal challenges begin in federal district courts, whose decisions are then reviewed by federal courts of appeals. Per the Clean Water Act, a number of decisions by the EPA administrator must be heard directly in federal courts of appeals. For now, the WOTUS Rule will not be implemented, at least until the stay of the WOTUS Rule is lifted. In the meantime, EPA and the Corps have stated that they intend to use the agencies’ prior regulations defining WOTUS, which means that the agencies will implement those regulations as they did before the effective date of the WOTUS Rule.