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Supreme Court: “Waters of the United States” Challenges Belong in Trial Courts

Jan 22, 2018 | by William Perry Pendley

Mountain States Legal Foundation welcomes ruling that vindicates western miners.

DENVER, CO.  A 122-year-old nonprofit, non-partisan mining trade association with thousands of members welcomed today’s ruling of the Supreme Court of the United States that challenges to “wetland” determinations by federal agencies must be heard in first in federal trial courts.  The American Exploration & Mining Association (AEMA) of Spokane, Washington, which challenged the “waters of the United States” (WOTUS) rule issued by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps), argued the Clean Water Act provides the rule must be challenged first in federal district courts–not federal courts of appeals, as argued by the EPA and the Corps.  Out of an abundance of caution, AEMA, which is represented by Mountain States Legal Foundation (MSLF), challenged the WOTUS rule before the U.S. Court of Appeals for the Sixth Circuit and in the U.S. District Court for the District of Columbia.  In its ruling today, the Court reversed the Sixth Circuit, which had held that federal courts of appeals alone had jurisdiction to decide the lawfulness of the rule, and remanded the case with instructions to dismiss the challenge for lack of jurisdiction.

“Today’s ruling is compelled by the text of the Clean Water Act, which provides in its plain and explicit language that judicial review is to be had in the federal district courts,” said William Perry Pendley, MSLF’s president.

Over the years, landowners challenging federal wetland rulings reached the Supreme Court of the United States.  In 1985, deciding at which point “water ends and land begins,” the Supreme Court upheld a definition that included wetlands that “actually abut[] on” traditional navigable waters.  In 2001, the Court held that “non-navigable, isolated, intrastate waters,” even those used by migratory birds, were not within the CWA.  In 2006, ruling on whether the CWA included intrastate wetlands adjacent to non-navigable tributaries of navigable waters, the Court vacated the Corps’ rules.  For a four-judge plurality, Justice Scalia required a “continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” but Justice Kennedy, while concurring in striking down the rules, demanded “a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.” 

In 2007, the EPA and the Corps responded to the Court’s rulings and in late 2008, after the receipt of 66,000 comments, issued new guidance on identifying “waters of the United States.”  Then, in 2011, the two agencies proposed new guidance that expanded significantly the reach of the CWA, including over vernal pools, prairie potholes, natural ponds, and playa lakes.  In response, MSLF and many others demanded a rulemaking.  The agencies agreed and began the rulemaking in 2014, which was completed in in 2015.

Mountain States Legal Foundation, founded in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in suburban Denver, Colorado.

For more information:  American Exploration & Mining Association v. EPA - Court of Appeals for 6th Circuit

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