April 7, 2016

What's the future of WOTUS?

By Damien M. Schiff Senior Attorney

Last week I had the opportunity to speak on a panel during the annual spring meeting of the American Bar Association’s Section on Environment, Energy, and Resources.  The focus of my presentation was on the EPA and the Corps’ Clean Water Act rule interpreting the meaning of the “waters of the United States.”  I noted that one might almost feel sorry for the agencies in having spent so much time and effort trying to divine the meaning of Justice Kennedy’s “significant nexus” text, set forth in Rapanos v. United States, given that now, with Justice Scalia’s death, the views of Justice Kennedy (as the erstwhile swing voter) are significantly less relevant.

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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.

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