By Max E. Bridges
Last week, the United States Supreme Court agreed to decide whether the Sixth Circuit Court of Appeals is the proper venue for challenges to the “Clean Water Rule.” As previously detailed on this blog, the Clean Water Rule was promulgated by the Environmental Protection Agency and the Army Corps of Engineers to clarify and expand the reach of the Clean Water Act which is controlled by the phrase “waters of the United States.” At least 30 states and multiple industry groups challenged the rule in federal courts across the country. In February 2016, the Sixth Circuit ruled that it, not the federal district courts, has jurisdiction to decide challenges to the rule. That appeals court ruling led to the consolidation of more than 100 challenges in the Sixth Circuit.
The United States Supreme Court will now decide whether the Sixth Circuit erred when it held that it had jurisdiction to review challenges to the Clean Water Rule. Note, the Supreme Court will not decide the merits or validity of the rule at this time. A decision in this case is expected by July of this year.
Max Bridges, Associate in the Firm’s Natural Resources & Environmental Service Team, wrote an article that was published in the fall edition of the Kentucky Rural Water Association‘s Waterproof Magazine. The article, “EPA’s Muddy ‘Waters of the U.S.’ Rule,” describes the history of the Clean Water Act with regard to the “waters of the United States,” and explains how certain aspects of the Clean Water Rule have yet to be clarified.
Please click here to read the full article.
By Max E. Bridges
On Monday, the U.S. Court of Appeals for the Sixth Circuit concluded that it has jurisdiction to review challenges to the “Clean Water Rule.” As previously detailed on this blog, the Clean Water Rule was promulgated by the Environmental Protection Agency (EPA) and the Army Corps of Engineers to clarify and expand the reach of the Clean Water Act which is controlled by the phrase “waters of the United States.” But there has been intense opposition to the rule and it is now subject to more than 20 separate challenges filed by numerous states and interest groups. A number of these challenges were consolidated in the Sixth Circuit and in October, the Sixth Circuit stayed the rule nationwide, concluding that the challengers demonstrated a “substantial possibility of success.”
In yesterday’s decision, the Sixth Circuit panel concluded that it has jurisdiction to hear the consolidated challenges to the Clean Water Rule under Sixth Circuit precedent and 33 U.S.C. § 1369(b)(1) of the Clean Water Act. Unless the EPA or the Army Corps can obtain a hearing on this jurisdiction question before all of the Judges of the Sixth Circuit and/or it’s reviewed by the U.S. Supreme Court, and in either case, have the decision overturned, the Sixth Circuit will be the first court to decide the validity of the Clean Water Rule.
By Max E. Bridges
On December 11, the U.S. Supreme Court granted certiorari to determine if a party can appeal a U.S. Army Corps of Engineers’ jurisdictional determination that a water feature is regulated under the Clean Water Act. United States Army Corps of Engineers v. Hawkes Co., Inc. et al., Docket No. 15-290. The Petition was filed by the Army Corps after the Eighth Circuit determined that a jurisdictional determination was final agency action and appealable. The Supreme Court’s decision will resolve a circuit split between the Eight and Fifth Circuits, and the issue is significant because prior to development landowners often obtain the Corps’ opinions as to whether a particular water feature is regulated under the Clean Water Act. If the Corps has jurisdiction, the landowner must obtain a permit (which takes considerable time and resources) or risk substantial enforcement penalties.
The Administrative Procedures Act allows judicial review of “final agency action for which there is no other adequate remedy in a court.” But the Corps has long maintained that its jurisdictional determination is not Continue reading Supreme Court to Decide Whether a Corps Jurisdictional Determination Can be Appealed