WOTUS Lawsuit Update: The Fight Continues

Date: March 02, 2016 Last Edit: March 07, 2016

The National Federation of Independent Business is continuing its fight to challenge the Waters of the United States (WOTUS) Rule—which the U.S. Environmental Protection Agency and Army Corps of Engineers’ illegally promulgated last year, purporting to define the jurisdictional reach of Clean Water Act (CWA). We maintain the WOTUS Rule is illegal. Specifically, we argue that it violates the CWA, the U.S. Constitution and the Regulatory Flexibility Act.

Unfortunately it may be quite a while before we get down to brass. At the moment the federal courts are still sorting out jurisdictional questions as to what court should be hearing our challenge. Last week the Sixth Circuit federal court of appeals in Cincinnati held that it is the proper court to determine the legality of the WOTUS Rule. But we disagree. Our position remains that the federal district court in Oklahoma has jurisdiction to hear our case.

At this point we are preparing to ask the Sixth Circuit to reconsider. Meanwhile we will continue to press our case in Oklahoma—which is in the Tenth Circuit federal court of appeals. Suffice it to say, we expect it will take quite a while to resolve these preliminary issues. But the good news is that our nationwide stay remains in effect—meaning that EPA and Army Corps are forbidden from enforcing the WOTUS Rule at this time. And that’s good news for small business landowners who might otherwise be swept-up into this regulatory land grab. So for the time-being landowners can breathe a sigh of relief.

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