September 29, 2016

6th Circuit delays Clean Water Rule challenge

By M. Reed Hopper Senior Attorney

Our challenge to the Corps and EPA’s controversial rule redefining “waters of the United States” (WOTUS), subject to federal control under the Clean Water Act, is on hold in the 6th Circuit Court of Appeals.  We were initially scheduled to file our opening brief this week, but the 6th Circuit recently agreed the briefing was premature.  Although the administrative record filed with the court is over a million pages, it’s still incomplete.  We want to augment the record with internal memos from agency officials that state the rule is legally indefensible and scientifically insupportable.  Obviously, the Corps and EPA want to keep those damning memos out of the record, arguing they are confidential communications and are not a part of the record.  Until the court resolves this argument and determines the scope of the record it will examine during the litigation, the briefing is on hold.  Briefing will likely resume in a couple of months.

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