February 9, 2017

WOTUS update

By M. Reed Hopper Senior Attorney

In our last update on the status of our challenge to the controversial Army Corps and EPA rule redefining “waters of the United States,” we informed you that the U.S. Supreme Court had granted review to consider the proper venue for the challenge and that the court would hear the case in April and issue a decision by June. However, the court has rescheduled oral argument to sometime in the upcoming October Term. This means we may not see a decision until next year. The court did not say why it rescheduled the case. But, with the appointment of a new Attorney General and pending Solicitor General and Supreme Court Justice, it is no surprise. Other cases have been rescheduled as well. As of today, opening briefs are still due on February 27.

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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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