July 26, 2016

Water Rule update

By M. Reed Hopper Senior Attorney

Regular readers of this blog know that PLF represents a number of industry, municipal, and private parties in challenging the Army Corps and EPA rule redefining the “waters of the United States” or the WOTUS rule.  That rule was issued in mid-2015 and was immediately assailed by approximately 30 states and 70 other parties across the Country who argue the new rule exceeds statutory and constitutional authority. Over the past year, the courts and the parties have tried to pin down the proper venue for challenging the new rule. That question is still open, but for now the rule challenge is being litigated in the Sixth Circuit Court of Appeals.  The first step in the litigation process is to define the scope of the administrative record that formed the basis for the rule. Although the record filed with the court is more than 350,000 pages, it does not include all relevant documents.  In particular, the record, as filed, does not contain damning internal memos that criticize the rule as both illegal and unworkable. Nor does it contain documents which may undermine the purported scientific basis for the rule or statements made by public officials that appear to misrepresent the rule.

Earlier this month, the States, the industry and municipal organizations, and various environmental groups moved the court to amend the record with these and other documents.  Last Friday, the government filed its opposition to the motion arguing these records are either privileged or were never relied on by the agencies when they adopted the rule.  So much for transparency! It will be interesting to see how the court resolves this issue.

In the meantime, the judge in our Minnesota District Court case is considering the government’s motion to dismiss the case.  The government argues it would be redundant to litigate our case both in the district court and in the Sixth Circuit but we have countered that the Sixth Circuit doesn’t have authority to hear the challenge to the WOTUS rule and, in any event, the Minnesota District Court is not bound by Sixth Circuit decisions. Therefore, the judge should allow us to challenge the water rule in the district court.  Or, alternatively, to stay the case until the U.S. Supreme Court rules on the venue question.  The judge may issue a decision on the motion to dismiss as early August.

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