Opinion: WOTUS draws more court attention

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Photo by Darrell Hoemann/Big Ag Watch

An Environmental Protection Agency rule on water usage defines a tributary as “a water physically characterized by the presence of a bed and banks and ordinary high water mark” and something that contributes directly or indirectly to the flow of a protected water. Farmers throughout the country believe this definition could put their operations at risk.

Dave Dickey

Dave Dickey

The legal maneuvering in the Waters of the United States court case just got more complicated.

The EPA issued its WOTUS rule last year to clarify which waterways the federal government could require permits. Opponents have been vocal in saying WOTUS is a federal overreach, giving EPA broad authority to require farmers to obtain permits for routine farming operations.

In April, the Sixth Circuit Court of Appeals in Cincinnati handed down a ruling saying its three judge panel got it right in claiming national jurisdiction over the case, in the process turning down a request by the American Farm Bureau Federation for an en banc hearing to reconsider its ruling.

But the Sixth Circuit three-judge panel’s original ruling was murky to say the least. The lead opinion, written by Judge David McKeague, pointed to arcane language in the Clean Water Act to justify the court’s jurisdiction over WOTUS deliberations.

The bottom line was the three-judge panel was not on the same page, creating plenty of doubt and criticism over the Sixth Circuit’s claim.

That has not sit well with a number of states that think the place for WOTUS legal challenges lies with district courts and not federal appeals courts.

Eleven states in all – Georgia, Kentucky, Kansas, West Virginia, South Carolina, Alabama, Wisconsin, Utah, Indiana, North Carolina and Florida – have filed suit (State of Georgia et al. v. McCarthy et al., case number 15-14035) with the Eleventh Circuit Court of Appeals in Atlanta to overturn the Sixth Court’s ruling.

In their appeal, the states argued the Sixth Court’s inability to provide anything close to a united front is reason enough to vacate the ruling:

“…the Sixth Circuit’s decision on that same question was fractured; that two out of three judges on the panel believe that jurisdiction for these challenges actually rests with the district courts; or that the Sixth Circuit’s holding was based on a case that this court has already rejected.”

Meanwhile the Environmental Protection Agency and the U.S. Army Corps of Engineers argue the Sixth Circuit is as good as any to decide WOTUS’ fate.

For its part, the Sixth Circuit is in the process of reviewing at least 22 petitions in its effort to consolidate the case. The stakes are high.

Should the Eleventh Circuit overturn the Sixth Circuit’s jurisdiction, expect this increasingly tangled court battle to wind up at the feet of the U.S. Supreme Court.


About Dave Dickey

Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For the past 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Big Ag Watch covers agriculture and related issues including politics, government, environment and labor. Email him at dave.dickey@investigatemidwest.org.

This column reflects the writer’s own opinions and not those of Big Ag Watch.

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