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Appeals Court Rules it Can Hear WOTUS Lawsuit
USAgNet - 03/03/2016

Last week, a three-judge panel of the U.S. Court of Appeals for the 6th Circuit in Cincinnati ruled that it has jurisdiction over the lawsuits challenging the Waters of the United States rule.

The decision, which is certain to be appealed and likely will reach the U.S. Supreme Court, involves only the question of which court has authority to review the WOTUS rule; it is not a determination over the legality of the rule itself. Importantly, though, the 6th Circuit maintained -- at least for the time being -- the nationwide stay on the regulation. Following the appeals court decision, a U.S. District Court in Oklahoma dismissed challenges to the WOTUS rule that were before it.

The rule, which was issued under the Clean Water Act by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers, was supposed to clarify the authority of EPA and the Corps of Engineers over various waters.

That jurisdiction, based on several U.S. Supreme Court decisions, did include navigable waters and waters with a significant hydrologic connection to navigable waters, but the rule broadened that 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 encompasses lands adjacent to such waters.

The regulation took effect Aug. 28, 2015, but in November was stayed by the 6th Circuit until disposition of the lawsuits against it.

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