February 26, 2016

Federal Appeals Court Will Hear Waters Of The U.S. Challenge

Last year, the EPA expanded the definition of “Waters of the U.S.” in the Clean Water Act to include tributaries that flow into navigable waterways. - USDA

Last year, the EPA expanded the definition of “Waters of the U.S.” in the Clean Water Act to include tributaries that flow into navigable waterways.

USDA

BLOOMINGTON -- The 6th Circuit U.S. Court of Appeals announced Monday it will review a challenge from Indiana and 17 other states against the Environmental Protection Agency’s Waters of the U.S. rule.

Last year, the EPA expanded the definition of “Waters of the U.S.” in the Clean Water Act to include tributaries that flow into navigable waterways.

This broad definition includes personal property, meaning farmers will have to get expensive permits to dig fertilizer runoff ditches on their own land.

The Sixth Circuit has already placed a stay on the new interpretation until the court makes a decision.

If the appeal makes it all the way to the Supreme Court, there’s likely to be an even split on the bench now that Justice Scalia’s death leaves an opening.

“I think we can expect to see a four/four split in the Supreme Court, which certainly raises the stakes for how the court of appeals will decide the case,” says Robert Fischman, Law Professor at the IU Maurer School of Law. “Because if the supreme court is split four/four, then the court of appeals decision will stand.”

Given the amount of time it will take to go through the court of appeals, it is unlikely that this case will make it to the Supreme Court before Justice Scalia is replaced.

As for whether the Sixth Circuit will uphold the challenge, Fischman says that’s less clear.

“This is a case that remains a jurisdictional tangle in the courts, and the judges of the 6th Circuit, in making this decision, expressed some discomfort with the precedent of that particular court of appeals in making the decision about how to proceed.”

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