The 11th Circuit Court of Appeals has denied states' latest bid to have their challenges to the Waters of the U.S. (WOTUS) rule heard by district courts, where they think they would find more receptive audiences. On Tuesday, a three-judge panel ordered that an appeal of an earlier injunction request from Georgia and 10 other states be held in abeyance while the 6th Circuit Court of Appeals proceeds with its multiple cases challenging the WOTUS.
The substance of the appeal was rendered moot when the 6th Circuit put the rule on hold nationwide in October 2015. But states, with the backing of industry groups, had urged the 11th Circuit to take the appeal, arguing that the issue does not qualify under a provision of the Clean Water Act that allows certain challenges to leapfrog district courts and head straight to appellate court. The 6th Circuit, where appellate court challenges have been consolidated, has ruled that the issue belongs with it. A split between the courts on the matter would have set up a venue fight that could have reached the Supreme Court.
WOTUS has been controversial since it was first proposed, as it represents a gross expansion of federal jurisdiction over waterways that previously were not covered under the definition of “Waters of the United States” in the Clean Water Act. Many states and local governments opposed the rule and are hoping the legal challenge will ultimately result in a repeal of the rule.