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Wetland Regulation Related Court Decisions…Circuit What?  Where?

10/28/2015

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In this posting I wanted to review the U.S. court system structure to clarify the where of current decisions being made in certain courts.

As you may (or may not) remember from your high school civics class, Article III of the Constitution invests the judicial power of the United States in the federal court system. Article III, Section 1 specifically creates the U.S. Supreme Court and gives Congress the authority to create the lower federal courts. Congress has used this power to establish 13 U.S. Courts of Appeals, and 94 U.S. District Courts.

As seen in the flowchart below, the course of a case is decided by which laws (federal, state, local, etc.) are involved.  Since we’re currently watching the progress of the Clean Water Rule, I’ve highlighted the course involving federal laws. This diagram also explains how past wetland regulation decisions ended up in the Supreme Court. Keep in mind, the Supreme Court can decide if they will review a lower court decision or not; and certainly not all appeals to the Supreme Court are reviewed. If two lower courts disagree in their decisions, it is more likely the Supreme Court may step in for a final decision.
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Source: http://www.uscourts.gov/
Next, I want to show the geographic boundaries of the 13 U.S. Courts of Appeals, and 94 U.S. District Courts. The U.S. District Courts have jurisdiction over entire states or a state is divided into 2-4 areas (mostly described by direction, i.e. Washington State has two: U.S. District Court for the Eastern District of Washington and U.S. District Court for the Western District of Washington).

​You can see the dashed grey boundary lines within the state, if there is more than one U.S. District Court within a state. Also, to point out the last two U.S. Court of Appeals, I circled them in orange and numbered them. The colors of the states (or U.S. territories) show the area of jurisdiction for each numbered U.S. Circuit Court of Appeals. For example, if a court case was originally filed in Michigan (Eastern District or Western District) and an appeal of a court decision is made, it will be reviewed by the 6th U.S. Circuit Court of Appeals. The exception to this occurs if there is no clear and exclusive path established for judicial review.
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Source: http://www.uscourts.gov/
The success or failure (depending on your view) of a court case can depend on the location of the original filing, and on the complexity of the issues involved. The Clean Water Act allows challengers to file in any circuit, whereas the Clean Air Act gives the D.C. Circuit jurisdiction over most lawsuits. The Clean Water Act court cases also generally involve property rights issues and definitions of words within the law that make them approachable  for judges who are then willing to study and rule on the cases. The Clean Air Act is usually more complex than the Clean Water Act which makes it harder for judges to fully comprehend in the short time they have to decide a case – therefore in those instances concerning the Clean Air Act, the judges are more likely to accept EPA’s expertise and legal argument. 

Now we've a more complete picture of the courts  involved in the legal wranglings of the Clean Water Rule.

-JMB

Sources:
http://www.uscourts.gov/
http://www.eenews.net/stories/1060004942
   SUPREME COURT: Big wins elusive for EPA in Clean Water Act showdowns, by Jeremy P Jacobs, E&E reporter, Greenwire:     Wednesday, August 27, 2014
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The Clean Water Rule: Definition of Waters of the United States Final Rule

10/13/2015

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​Much has been said in the news lately about the Clean Water Rule. Some of what is said in the media, appears to me, to be misinformed and I thought in this blog article I would try to clarify some of the details of the Clean Water Rule, as succinctly as possible.
​
The original 297 page proposed Clean Water Rule was issued in April 2014.  Since that time, the EPA and Corps of Engineers have received over one million public comments. Reflecting public comments, the Final Rule was informally issued 
May 27, 2015, and then published in the Federal Register on June 28, 2015, to become effective on August 28, 2015. Numerous court cases were filed against the EPA and Corps of Engineers. A nationwide court-ordered stay was given on October 9, 2015, by U.S. Court of Appeals for the 6th Circuit (circuit court with jurisdiction over Michigan, Ohio, Kentucky, and Tennessee).  The nationwide stay means that the prior regulations are in effect for making jurisdictional determinations or taking other actions based on definitions of “waters of the U.S” (WOTUS). ​

In a “nutshell”, the Clean Water Rule defines eight waters of the United States categories, and clarifies the definitions of categories 5 through 8.

Clean Water Rule’s 8 WOTUS Categories:
   1. Traditional Navigable Waters*
   2. Interstate Waters and Wetlands*
   3. Territorial Seas*
   4. Impoundments of WOTUS*
   5. Tributaries to 1-3 (requires both OHWM** & bed/banks)
   6. Adjacent Waters to 1-5
   7. Similarly Situated Waters with significant nexus
        i. Prairie potholes (upper Midwest)
        ii. Carolina Bays and Delmarva bays (Atlantic coastal plain)
        iii. Pocosins (Central Atlantic coastal plain)
        iv. Western vernal pools (California)
        v. Texas coastal prairie wetlands (Texas gulf coast)
   8. Case-Specific Waters with significant nexus
        i. Within 100-year floodplain, but > 1,500’ from OHWM
        ii. Within 4,000’ of OHWM or High Tide Line

The Clean Water Rule attempts to reflect the best current science; align with the past Supreme Court decisions; rely on agency experience and expertise; reflect public input and comments; and protect public health, the economy, and the environment. Another potential benefit from this rule is the standardization among Corps of Engineers district offices in the administration of the Clean Water Act, with the additional clarification of these waters of the U.S. definitions.

What is NOT considered “waters of the United States” are waste treatment systems; prior converted cropland; artificially irrigated areas, swimming pools, reflecting pools, & ornamental waters constructed in dry land; man-made lakes/ponds constructed in dry land; water-filled depressions incidental to construction & mining; erosional features – gullies, rills, non-wetland swales; lawfully constructed grassed waterways; puddles; groundwater; stormwater control features constructed in dry land; wastewater recycling structures constructed in dry land; and certain flow-defined ditches.

Now, we wait on the court system… There is some debate if the 6th Circuit has the authority to declare a NATIONWIDE stay of this rule.

-JMB

*No change from previous regulations.

** Ordinary High Water Mark – that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, presence of litter and debris or other appropriate means

Source:
Federal Register / Vol. 80, No. 124 / Monday, June 29, 2015 / Rules, Effective August 28, 2015


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    Wetland Regulations 101: More on the CWR

    Debates and Issues Surrounding The 2015 ​Clean Water Rule and Its Development

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