As we noted here, our challenge to the government’s expansive and controversial rule redefining “waters of the United States” (WOTUS) raises two important questions: (1) is the rule valid and (2) which is the proper venue for challenging such a rule–the federal district courts or the federal courts of appeals. The first question is being litigated in the 6th Circuit Court of Appeals. The second question will now be decided by the U.S. Supreme Court.
Today the Supreme Court granted our request to hear the case. It will be heard in April and decided by June of this year. The fact that the court has taken the case bodes well for our position that the Clean Water Act authorizes jurisdictional challenges in the federal district (trial) courts and need not be brought only in a court of appeals. The issue is important because it is unclear where and when regulated landowners can go to challenge federal rules interpreting the Clean Water Act. Filing a claim in the wrong court can result in losing the right to challenge the rule at all. The position we advocate maximizes the opportunity for the regulated public to challenge rules that define the scope of the Act.
Our brief urging the court to take the case can be read here. We will be filing another brief, on the merits of the case, in a couple of months.