GCSAA Press Release:

2016-02-25 | Bob Helland, GCSAA - February 2016 - Bob Helland

A three judge panel of the United States Court of Appeals for the 6th Circuit decided February 22, 2016 that it is the proper court to review the merits of the Clean Water Rule (commonly known as “WOTUS”).   Like every other legal decision impacting WOTUS so far, this decision is not final and is subject to re-hearing and/or appeal. However, it indicates a possible path forward on determining whether the Environmental Protection Agency and the Army Corps of Engineers overreached in its definition of “waters of the United States” under the Clean Water Act.  And importantly, this decision allows the nationwide stay of the WOTUS rule to continue, providing relief to golf and numerous other industries otherwise impacted. 

 What this means:  An endgame in sight.  As we have noted, 31 states, along with a number of industry groups, have either filed or joined legal actions at both the federal district court and circuit court level seeking to stop the Clean Water Rule.  This unique situation is due in part to Section 509 of the Clean Water Act which provides the Circuit Court with exclusive jurisdiction over certain actions by the Environmental Protection Agency, including those impacting permits under the National Pollutant Discharge Elimination System (NPDES).  The 6th Circuit Court of Appeals did not answer the question of whether Section 509 covers the WOTUS rule.  As our colleagues at the Waters Advisory Coalition note:

-- Two of the judges disagreed that § 509(b)(1) requires direct circuit court review of the WOTUS Rule challenges, but one concurring judge felt bound by a previous Sixth Circuit decision (National Cotton Council) to find that the Sixth Circuit has jurisdiction here. 

 -- This fractured decision means that the path forward for the WOTUS Rule litigation is not entirely clear.   Importantly, for now, the nationwide stay of the Rule remains in effect.  Due to the split nature of the court’s decision, and the disagreement over National Cotton Council, it seems very likely that at least some petitioners will seek rehearing en banc (rehearing by all of the active judges on the Sixth Circuit).  Under Sixth Circuit Rules, the parties have 45 days to file such a petition.  Rehearing en banc is rarely granted, but if the court grants en banc review on the jurisdictional order, it could take months to resolve.

  Even with possible appeals though, there is an end in sight. And as we note, golf is being spared the impact of the expansive WOTUS rule for now. 

We will continue to monitor the legal twists and turns and make sure golf’s voice is heard.