April 27, 2017

Briefing on WOTUS Rule begins in Supreme Court

By M. Reed Hopper Senior Attorney

On behalf of landowners, we filed our initial challenge to the Army Corps and EPA  “waters of the United States” or “WOTUS” rule in the Federal District Court of Minnesota in 2015. That case was dismissed for lack of jurisdiction. We filed a parallel challenge to the WOTUS rule in the 8th Circuit Court of Appeals that was consolidated with numerous other challenges to the rule in the 6th Circuit Court of Appeals. On Jan 13, 2017, the Supreme Court granted our request to resolve confusion over which court has jurisdiction to consider challenges to the WOTUS rule—the district courts or the circuit courts of appeals. The plain text of the Clean Water Act states such challenges should be brought in the district courts, but the 6th Circuit Court of Appeals ignored the plain text in favor of a “pragmatic approach” to the Act requiring the appellate courts to hear such challenges. On Feb 28, 2017, the President of the United States signed an Executive Order directing EPA and the DOJ to reconsider the WOTUS rule and trim back its excesses. At the signing, the President mentioned our Johnson stock pond case as justification for the order. The Executive Order was not unexpected as the rule is clearly illegal, as two courts have already suggested. The Executive Order may moot all substantive challenges to the WOTUS rule (including our own) but the Supreme Court must still resolve the question of where such challenges may be brought in future cases. Today, PLF filed its opening brief in the Supreme Court along with the States, the Petitioner, and other industry representatives. The government has 30 days to respond. A date for oral argument has not been set. You can track the case here at our website (with access to the pleadings) or here at the Supreme Court website.

learn more about

Waters of the United States

In 2015 PLF challenged the Environmental Protection Agency’s proposed rule to stretch federal control to nearly every pond, ditch, and puddle in the nation as nothing more than an outrageous—and illegal—power grab under cover of the Clean Water Act. And under the Act, people who are harmed by such rules have six years to sue in federal district court. That is, until the EPA rewrote the rule, trying to prevent legal action by giving property owners just 120 days to sue, and then only in federal appellate courts. On January 22, 2018, the U.S. Supreme Court rejected the EPA’s power play and unanimously ruled for PLF and property rights. The High Court agreed with PLF that the EPA cannot shelter its “waters of the United States” rule from judicial review by arbitrarily limiting where victims can sue.

Read more

What to read next