Source: AG POLITICO, 10/11/17

THE WOTUS WITH THE MOSTEST: The Supreme Court today will take up a wonky but important question central to federal water law - should challenges to the Obama administration's Waters of the U.S. rule go through a district court first or proceed straight to an appellate venue? The Trump administration is working to repeal WOTUS in the coming months and says it will issue a rewritten version early next year. But the venue question is all but guaranteed to be applicable again, meaning SCOTUS guidance could prove useful.

What you need to know: The Clean Water Act says most CWA regulations and actions should be challenged first at the district level, but it lists seven exceptions that would go straight to a circuit court. Two are in play here: one regarding rules affecting effluent limitation guidelines, and one for any action approving or denying discharge permits. The Trump administration argues both exceptions apply, and the suits should go to a circuit court first. Various challengers, led by the National Association of Manufacturers, want it to go through district courts first.

History brief: After the rule was released, lawsuits were filed in district and circuit courts throughout the country. After district-level proceedings led to a stay of WOTUS in 13 states only, the circuit-level cases were consolidated into one mega-case before the 6th Circuit, which issued a nationwide injunction. The 6th Circuit then issued a complicated 1-1-1 ruling that concluded it should indeed hear the challenge first. One judge said both exceptions apply, one said only one exception applies, and the third said neither applies and that the challenges should first go through district courts.

Why it matters: This isn't entirely an esoteric spat. Supporters of district-first litigation argue the CWA gives more time to challenge regulations that go to lower courts first. It also means challengers can pick the district court they want to sue in, whereas circuit-first challenges would be randomly consolidated. Meanwhile, those who want circuit-first review argue it provides more certainty and helps avoid patchwork problems - such as the 13-state WOTUS freeze.