Since the WOTUS rule was promulgated in 2015, there has been much debate over its validity, promises by the current administration to repeal and replace the rule, and, on July 27, 2017, a notice of proposed rulemaking that would alter the current definition of “waters of the United States.”  But before the merits of the rule itself are considered and the rule’s fate is determined, the Supreme Court must decide a crucial preliminary question:  In any future challenges to the rule, which court first gets to decide?

Almost immediately after the rule was promulgated, 30 states filed 5 separate lawsuits.  Lawsuits were also brought by business groups, agricultural organizations, and numerous nonprofit organizations.  Cases were filed in 11 different district courts, injunctions were sought, and litigation chaos ensued.

On October 11, the Supreme Court will hear arguments in National Association of Manufacturers v. Department of Defense addressing the question of whether the Circuit Courts of Appeals or district courts should have original jurisdiction over petitions challenging the WOTUS rule.

The EPA and Army Corps of Engineers argue that such challenges should be heard in the Circuit Courts.  The agencies argue that the rule unambiguously falls within the text of the jurisdictional provision of the Clean Water Act (CWA), which grants original jurisdiction to Circuit Courts for challenges to “any effluent limitation or any other limitation” promulgated under Section 1311 of the CWA, challenges to the grant or denial of any National Pollutant Discharge Elimination System (NPDES) permit, and other enumerated types of cases.  First, the agencies claim the WOTUS rule is a “limitation” under Section 1311 of the CWA because it defines the geographic scope of the CWA.  Second, they argue that it is “functionally similar” to the denial of a NPDES permit and therefore should fall within Circuit Court jurisdiction based on prior precedent.

The agencies also essentially argue that practicality and common sense dictate that the Circuit Courts should have original jurisdiction.  As pointed out in the Department of Defense (DOD) brief, sending such challenges directly to Circuit Courts will result in faster, more uniform resolution of the WOTUS rule and similar future administrative rules with widespread national impact.  This, DOD explains, would be achieved by eliminating a layer of judicial review and ensuring that related agency actions are routed through the same judicial channels.

Conversely, the National Association of Manufacturers (NAM), along with several environmental groups, states, and state agencies, argues that such challenges should be decided at a more local level in the district courts.  NAM has a fairly strong textual argument.  After all, the disputed jurisdictional language of the CWA only specifically grants original Circuit Court jurisdiction over the creation of “any effluent limitation or any other limitation” and the grant or denial of a NPDES permit.  Based on a purely textual reading, the WOTUS rule doesn’t seem to be a “limitation” per se, nor is it a NPDES permit.  Moreover, NAM argues that if Congress had actually intended to grant jurisdiction to the Circuit Courts, it would have used much broader language, like it did when it drafted the jurisdictional provision of the Clean Air Act a mere three days later.

Despite NAM’s fairly strong textual argument, the agencies seem to have practicality on their side.  NAM argues that original Circuit Court jurisdiction will not result in increased judicial efficiency.  But it’s hard to see how requiring challenges to be brought in the 13 Circuit Courts within 120 days would not be more efficient than allowing cases to be originally decided in any of the 94 district courts over a longer period of time and then reviewing those decisions in Circuit Court.  NAM argues that such multi-district review will result in better legal decisions overall because the “doctrinal dialogue” that results from disagreements among the lower courts will lead to more thorough legal analysis on appeal.  However, it undermines this argument by pointing out later in its brief that many of the cases will likely be consolidated anyway.  In another amicus brief in support of NAM, it was argued that district court review is more practical because the WOTUS rule’s applicability depends on facts specific to each water feature.  While multi-court review may be beneficial in some respects, it certainly has costs—particularly delayed decision-making and a lack of uniformity.

The outcome of the case will likely come down to whether the Court finds that the practical benefits of a broad interpretation of the jurisdictional provision outweigh the benefit of sticking to a strict literal interpretation of the statute.  Regardless of how the Court decides, the long-term fate of WOTUS is far from certain in either district or circuit court.  Nevertheless, the Court’s decision will continue to have important impacts as similar administrative rules and jurisdictional issues arise in the future.