The CWA creates specific categories of agency actions that are directly and exclusively reviewable by courts of appeals. 33 U.S.C. § 1369(b)(1). NAM, several states and some environmental groups, including the Sierra Club and Waterkeeper Alliance, contended that the WOTUS Rule did not fit within any of the listed categories, and therefore was subject to review in district court.

The CWA creates specific categories of agency actions that are directly and exclusively reviewable by courts of appeals. 33 U.S.C. § 1369(b)(1). NAM, several states and some environmental groups, including the Sierra Club and Waterkeeper Alliance, contended that the WOTUS Rule did not fit within any of the listed categories, and therefore was subject to review in district court.

In its first amicus brief, filed in November of 2007, the United States argued that because the Silvicultural Rule unambiguously attempts to exempt the discharges at issue in the case, citizen suit jurisdiction under 33 U.S.C. § 1365(a) was improper. The United States contended that the plaintiff's suit was barred because the plaintiff did not timely challenge the Silvicultural Rule under 33 U.S.C. § 1369(b), which mandates that suits seeking judicial review of certain actions by EPA under the CWA be brought within 120 days in circuit court. Any action, including citizen suits, that could have been brought under section 1369(b) is barred by statute unless the grounds for the suit arose more than 120 days after EPA's action.

Previously, on October 9, 2015, the Sixth Circuit stayed the implementation of the Final Rule nationwide, concluding that the challengers demonstrated a substantial possibility of success on the merits. In a fragmented decision, two of the panel’s judges found that under the Sixth Circuit precedent in National Cotton Council of America v. U.S. E.P.A., 553 F.3d 927, 933 (6th Cir. 2009), the Sixth Circuit had jurisdiction over review of the Final Rule.Sixth Circuit Issues Splintered Decision Judge David W. McKeague delivered the Sixth Circuit’s opinion and concluded that the court has jurisdiction over challenges to the Final Rule under both 33 U.S.C. § 1369(b)(1)(E) and (F). Section 1369 identifies the seven types of actions by the EPA Administrator that are reviewable directly in the federal circuit courts.

On January 22, 2018, the Supreme Court decided National Association of Manufacturers v. Department of Defense, No. 16-299, in which it held that the federal courts of appeal do not have direct and exclusive jurisdiction under 33 U.S.C. § 1369(b)(1) over an appeal of the Environmental Protection Agency and the Army Corps of Engineers’ enacting a regulation defining “waters of the United States” for purposes of 33 U.S.C. § 1362(7). The Clean Water Act, 33 U.S.C. § 1251, et seq., establishes a statutory scheme for “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation’s waters.”

22Geographic scope aside, the court's ruling yesterday stands in sharp contrast with two other district court rulings this week dismissing challenges to the WOTUS rule for lack of jurisdiction and dismissing motions for preliminary injunction as moot.23 In both of those cases, the courts held that the WOTUS rule is subject to direct review by a court of appeals under Clean Water Act Section 509(b), 33 U.S.C. § 1369(b). Notably, in so holding, the Northern District of West Virginia emphasized the Eighth Circuit's holding in Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013), which adopted an expansive view of the scope of 509(b) jurisdiction.

The court also rejected the agencies' contention that the district court lacks jurisdiction to hear the case. EPA and USACE argued that, pursuant to 33 U.S.C. § 1369(b)(1)(E), the district court lacked jurisdiction because EPA had promulgated "an effluent limitation or other limitation under [33 U.S.C. §§ 1311, 1312, 1316, or 1345]," and therefore original jurisdiction belonged in the U.S. Court of Appeals. The court rejected this argument, finding the Rule does not impose any "effluent limitation" or "other limitation" within the statutory definition.

Plaintiffs in some of these cases have already filed motions for preliminary injunctions seeking to bar application of the rule.In addition, multiple parties have filed petitions for review of the final rule in eight circuit courts of appeal. These suits are filed under 33 U.S.C. § 1369(b)(1), which provides for exclusive judicial review in the courts of appeals for certain actions of the EPA Administrator. 33 U.S.C. § 1369(b)(1).In response to the flood of litigation, the EPA and the Army Corps are seeking to take advantage of judicial procedures that allow lawsuits presenting common issues to be consolidated in a single court. The Judicial Panel on Multi-District litigation hears petitions seeking consolidation of federal cases.

First, the Court ruled that jurisdiction over NEDC's lawsuit was proper under the Clean Water Act's citizen suit provision, 33 U.S.C. § 1365(a). Although another provision in the Act, 33 U.S.C. § 1369(b), provides exclusive jurisdiction for challenging certain agency actions, including certain rulemakings, the Court did not view NEDC's case as directly challenging or seeking the invalidation of EPA's rules. Instead, NEDC sought to enforce "what is at least a permissible reading" of the Silvicultural Rule.

15Decker, 81 USLW 4190, slip op. at 5 (citing 33 U.S.C. §1369(b)(2)). This jurisdictional grant is accompanied by several perquisites to suit, such as exhaustion of administrative remedies.