5 months ago

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.

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Waters of the United States

In 2015, the EPA redefined waters of the United States under the Clean Water Act, expanding it to include essentially any tributary, no matter how small or remote; neighboring water bodies without any connection to a navigable water; and even isolated waters that are legally uncovered. Representing a coalition of landowners and small businesses, we challenged this illegal regulation. Our case has been consolidated with a number of other cases and will be heard by the U.S. Supreme Court on October 11.

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