Congressional Republicans Pile on in Water Rule Challenge

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By Susan Bruninga

Nov. 8 — Opponents of a federal regulation to clarify which waters are subject to Clean Water Act requirements got the backing of 88 Republican members of Congress who filed a friend of the court brief supporting a challenge to the rule ( Murray Energy Corp. v. EPA (In re EPA and Dep’t of Def. Final Rule) , 6th Cir., No. 15-03751, briefs filed 11/8/16 ).

In an amicus brief filed in the U.S. Court of Appeals for the Sixth Circuit, the lawmakers accused the Obama administration of government overreach in issuing the Clean Water Rule, also known as the waters of the U.S. rule.

“Despite the absence of any congressional directive authorizing such regulation, the Agencies created a Rule that would allow them to federally regulate land and waters reserved to state control, raising significant federalism concerns,” the brief said.

Among those signing onto the brief are Rep. Bill Shuster (R-Pa.), chairman of the House Transportation and Infrastructure Committee, who has often criticized the rule, and Sen. James Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee, another frequent critic of the rule.

The lawmakers’ brief supports 31 states and 57 business and municipal groups among others challenging the rule in the Sixth Circuit, which issued an opinion declaring itself the proper venue for hearing such litigation.

The states argued in their opening brief filed Nov. 1 that they have the sole authority to regulate isolated wetlands and other waters not visibly connected to navigable waterways. The final rule, they said, demonstrates that the Environmental Protection Agency and the U.S. Army Corps of Engineers have ignored Supreme Court rulings in 2001 and 2006 saying such waterways are beyond the reach of federal regulators.

In their Nov. 1 opening brief, the industry and municipal plaintiffs said the Supreme Court was clear that the word “navigable” has meaning under the Clean Water Act, “and yet the Rule asserts jurisdiction over countless isolated waters and dessicated land features that bear not the slightest resemblance to navigable waters.”

To contact the reporter on this story: Susan Bruninga in Washington at

To contact the editor responsible for this story: Larry Pearl at

For More Information

The lawmakers’ brief in In re Murray Energy Corp. v. EPA (In re EPA and Dep’t of Def. Final Rule is available at

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