Nationwide Stay of WOTUS Rules Remains in Effect

On February 22, 2016, the Sixth Circuit ruled that it has jurisdiction to hear numerous consolidated petitions filed in both district and circuit courts across the country challenging the legality of the federal Environmental Protection Agency and U.S. Army Corps’ “Waters of the U.S.” final rule. This ruling rejected calls from opponents of the WOTUS final rule to allow for lower district courts to first decide the issue.

The WOTUS final rule, intended to clarify the scope of the “waters of the United States” under the protection under the Clean Water Act, is the subject of intense litigation and legislative action. Several states, including Ohio and North Dakota, along with numerous industry groups, challenged the WOTUS final rule in nearly 20 federal district courts across the country when it became effective in late August 2015. Both chambers of Congress also voted to overturn the WOTUS final rule, although President Obama vetoed the measures.

The nationwide stay of the WOTUS final rule issued by the Sixth Circuit in early October of 2015 is still in effect, and no schedule for hearing the case is set yet. Although the Sixth Circuit’s ruling settles the jurisdictional challenges to the WOTUS final rule for now, there is a pending case in the 11th Circuit (State of Georgia et al. v. McCarthy et al.,) that seeks to overturn a Georgia district judge’s finding that an appeals court is the proper venue to challenge the WOTUS final rule.

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