Clean Water Rule challenge – an update

December 13, 2016 | By REED HOPPER

Our challenge to the Army Corps and EPA rule redefining “waters of the United States” (WOTUS) under the Clean Water Act, raises two questions: (1) is the rule valid? And (2), where should the challenge be heard–in the district or appellate court? Both questions are important.

The first question is important because the rule literally expands federal control over local land and water use further than any law in the Country’s history in clear violation of statutory, constitutional, and judicial precedents, affecting millions of landowners nationwide. The second question is important because it is unclear where and when regulated landowners can go to challenge federal rules interpreting the Clean Water Act.  Filing a claim in the wrong court can result in losing the right to challenge the rule at all.

The validity of the Clean Water Rule is being litigated in the 6th Circuit Court of Appeals whereas the venue question is being litigated in the U.S. Supreme Court. We filed our opening brief in the 6th Circuit in November but further briefing will continue into next year. We filed our opening brief in the U.S. Supreme Court in October. Last week, the government filed its response. We don’t expect the High Court to decide whether it will hear the venue question until next year. In the meantime, you can track the briefing of both cases at our web page here.