On Thursday (April 21, 2016)  the U.S. Court of Appeals for the Sixth Circuit declined to grant rehearing by the full court on the question of which court has jurisdiction to review legal challenges to the “Waters of the U.S.” rule. In February, a panel of three Sixth Circuit judges ruled that jurisdiction belongs in that court, and not in the district courts. The panel was split, however, with three separate opinions, two of which stated that a proper reading of the Clean Water Act puts jurisdiction in the district courts. The decision thus only increased the uncertainty over which court properly has jurisdiction to review the rule.
Absent review by the U.S. Supreme Court, the ruling theoretically clears the way for the Sixth Circuit to decide the merits of the numerous lawsuits challenging the rule. It is expected that the Environmental Protection Agency will promptly seek dismissal of all pending district court cases. However, two other courts of appeal—the Eleventh and the Tenth—have been asked to consider the same jurisdictional question in separate appeals. If either of those courts concludes that jurisdiction lies in the district courts, there will be a split among the circuits crying out for Supreme Court review of the question. Meanwhile, AFBF and the other litigants challenging the rule are deciding whether to seek Supreme Court review or proceed to the merits in the Sixth Circuit.