Supreme Court of the United States to Hear “Waters of the United States” Challenge

January 13, 2017 – DENVER, CO. A 122-year-old nonprofit, non-partisan mining trade association with thousands of members today welcomed the decision of the Supreme Court of the United States, consistent with its earlier brief, to review its lawsuit against the Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers, and their top officials over newly released final rules that purport to define “waters of the United States” in the Clean Water Act (CWA) after odd rulings from the U.S. Court of Appeals for the Sixth Circuit. The American Exploration & Mining Association (AEMA) (once Northwest Mining Association) of Spokane, Washington asserts that the rules published on June 29, 2015, violate both the Regulatory Flexibility Act and the Administrative Procedure Act. AEMA is represented by Mountain States Legal Foundation (MSLF), which commented on the draft rules by arguing that they illegally: extend to all waters (not just wetlands) and all waters adjacent to non-navigable interstate waters; create a new jurisdictional concept “similarly situated waters” by misquoting the Supreme Court; and ignore the Court’s demand regarding alleged wetlands adjacent to non-navigable tributaries.

“We are delighted the Court agreed to answer a question of great national importance, that is, whether Congress intended a definitional rule delineating the scope of the Clean Water Act to be reviewed exclusively in the court of appeals, or, as the plain text of the law provides, 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 to 230,000 comments, many of which demanded a formal rule-making, the agencies issued that proposal in April of 2014.

The three separate judgments of the Sixth Circuit panel denying all motions to dismiss the petitions for review for lack of subject matter jurisdiction was entered on February 22, 2016, and the Sixth Circuit denied a petition for rehearing en banc on April 21, 2016.

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. Environmental Protection Agency - https://www.mountainstateslegal.org...ronmental-protection-agency#.WH-vsbYrI_U


John Stewart
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