On February 22, 2016, the U.S. Court of Appeals for the Sixth Circuit ruled that it – not the federal district courts across the country – has jurisdiction to adjudicate challenges to the EPA-Army Corps WOTUS rule. The 2-1 decision, with one judge concurring in the judgment, only, and another writing a pointed dissent, raises the potential for an en banc review and possible reversal of the Court’s jurisdictional decision. If no request for en banc review is made, or if such request is denied, the Sixth Circuit will turn to ruling on the merits of the challenges to the WOTUS rule.
