States Ask Eleventh Circuit to Proceed with WOTUS Arguments

Arguments should proceed in a challenge to the Environmental Protection Agency's waters of the U.S. (WOTUS) rule before the U.S. Court of Appeals for the Eleventh Circuit, even with previous decisions by the Sixth Circuit on the issue, according to a brief filed by a group of states led by Georgia that are challenging the rule.

The states argued that the Eleventh Circuit is not bound by the Sixth Circuit 1-1-1 ruling about the proper jurisdiction for challenges under the Clean Water Act (CWA) to rules such as WOTUS. The states' brief asserted that the court should instead rely on its own legal precedents on the question of court jurisdiction.

The Sixth Circuit decision was "fractured" the states said, again citing the 1-1-1 split. The different legal rationales presented for jurisdiction and review authority in the Sixth Circuit decision also indicate that there is a good chance the Sixth Circuit decision won't stand, the brief noted. Due to the vulnerable legal underpinnings of the Sixth Circuit decision, the states urged the Eleventh Circuit to address the issues themselves and not rely Sixth Circuit decision.