Update on Challenge to U.S. EPA's Waters of the United States Rule

As we previously reported in our Fall 2015 ERN,¹ several industry and environmental groups have challenged the Environmental Protection Agency's Final Waters of the United States Rule. On February 22, 2016, the Sixth Circuit Court of Appeals decided a threshold issue in the various challenges, namely which court has jurisdiction over such a challenge, the circuit court of appeals or the federal district court.² In a 2-1 decision, two judges held that the challenge must be brought in a circuit court of appeals, although on different grounds, while the third judge concluded that the challenge must be brought in district court.³ Given the fractured panel opinion, it is not surprising that, on February 29, 2016, several industry groups petitioned the Sixth Circuit for en banc review, which was denied on April 21, 2016.