April 21, 2016

Clean Water Act rule rehearing denied

By M. Reed Hopper Senior Attorney

One of the frustrating but fascinating aspects of our challenge to the expansive Clean Water Act rule, redefining “waters of the United States” (WOTUS) subject to federal control, is that the federal courts have yet to determine conclusively whether the numerous challenges to the rule should be heard in the district courts or in the court of appeals.

The district court in North Dakota has held it has jurisdiction to hear the case whereas the Sixth Circuit Court of Appeals has held it has jurisdiction to hear the case.  We believe the district courts are the proper venue for challenging the new rule.  Therefore, as we explained here, we petitioned the Sixth Circuit to reconsider.  But today, that court decided to not rehear or reconsider its determination that all challenges to the WOTUS rule should be litigated in that court.  This means that we, and sixty other plaintiffs, will have to decide whether to petition the venue ruling to the Supreme Court of the United States or argue the case in the Sixth Circuit.

There are certain advantages to litigating the case in the Sixth Circuit because that court has already determined the WOTUS rule is likely invalid and has prohibited implementation of the rule nationwide until it makes a final decision.  And briefing would be streamlined because the various challenges would be consolidated in a single court.  However, a determination of the proper venue is an important question because it could affect how and where plaintiffs may challenge questionable rule-making under the Clean Water Act in future cases, and perhaps other laws as well.

Stay tuned for more on this case at a later date.

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