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Murray Energy Corp. v. United States Department of Defense

ELR Citation: 46 ELR 20038
Nos. 15-3751 et al., (6th Cir., 02/22/2016)

The Sixth Circuit held that it has jurisdiction to hear numerous lawsuits challenging EPA's and the U.S. Army Corps of Engineers' "waters of the United States" (WOTUS) rule. The rule went into effect on August 28, 2015, but on October 9, 2015, the court issued a nationwide stay of the rule pending further proceedings in this action. Since that time, numerous petitioners and intervenors filed motions to dismiss, arguing that judicial review lies with the district courts. But the CWA and governing case law support a finding of circuit court jurisdiction. Petitioners contend the WOTUS rule is simply a definitional rule and that neither the statutory language nor the legislative history evidences congressional intent to authorize direct review of such a rule in the circuit courts. But they failed to identify any particular circumstances or practical considerations that would justify holding that adjudication of the instant petitions for review in the various district courts would better serve Congress' purposes. CWA §509(b)(1) identifies seven kinds of EPA action that are reviewable directly in the circuit courts. Here, two of those actions—approving or promulgating any effluent limitation or other limitation, and issuing or denying any NPDES permit—support such a finding. Although the rule does not itself impose any effluent limitation, by clarifying the definition of “waters of the United States,” it has the indirect effect of altering permit issuers' authority to restrict point-source operators' discharges into covered waters. The alteration invariably results in expansion of regulatory authority in some instances and imposition of additional restrictions on the activities of some property owners. The rule is therefore subject to direct circuit court review under §509(b)(1)(E). Similarly, the effect of the WOTUS rule is to impact permitting requirements, thereby affecting the granting and denying of permits, which brings the rule within the ambit of §509(b)(1)(f). All pending motions to dismiss were therefore denied, but the stay remains in effect.