On January 13, the Supreme Court granted a writ of certiorari in National Association of Homebuilders v. Department of Defense, a case challenging the Obama Administration’s “Waters of the United States” rule, which vastly expands federal jurisdiction over wetlands, and some not-so-wet lands.
At issue is whether a challenge may be brought in a federal district court or directly in a federal court of appeals. The U.S. Circuit Court of Appeals for the Sixth Circuit adopted a restrictive approach to judicial relief, allowing only federal appellate courts to hear WOTUS challenges. If upheld by the Supreme Court, this ruling would bar federal trial courts from hearing challenges brought by members of the regulated public; instead, these suits would be concentrated in the first federal Court of Appeals to hear a challenge.
While this issue may seem like a legal technicality, determining the proper venue for WOTUS challenges is important for industry and private property owners alike. If the Court reverses the Sixth Circuit, and allows WOTUS challenges to be filed in district courts across the country, this will allow further judicial review of the government’s justifications for this controversial rule.