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Appellate Court Will Consider Indiana Challenge Of EPA Water Rule

Wabash River Enhancement Corp.

The U.S. Court of Appeals for the Sixth Circuit says it will review a legal challenge that Indiana and 17 other states filed against the U.S. Environmental Protection Agency's "Waters of the U.S." rule.

The states went to court after the EPA last year expanded the definitionof “Waters of the U.S.” to include tributaries that flow into navigable waterways.

The broadened definition includes personal property, meaning farmers will be required to obtain permits to dig fertilizer runoff ditches on their own land.

The appellate court placed a stay on the EPA rule until the court renders a decision.

Indiana University School of Law Professor Rob Fischman says, if the appeal makes it all the way to the U.S. Supreme Court, there will likely be an even split due to the death of Justice Antonin Scalia.

“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,” he says. “Because if the supreme court is split four-four, then the court of appeals decision will stand.”

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

He says it's unclear whether the appellate court will uphold the challenge.

“This is a case that remains a jurisdictional tangle in the courts, and the judges of the Sixth 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,” he says.

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