On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit (located in Cincinnati, Ohio; Web site: http://www.ca6.uscourts.gov/internet/default.html) imposed a nationwide stay on the Clean Water Rule that had been issued on May 27, 2015, by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers. The new regulation is an attempt by the agencies to clarify what water bodies are considered “waters of the United States” and therefore fall under the jurisdiction of the federal Clean Water Act (CWA).
The May 27 final rule went through a 60-day public-comment period following its publication in the Federal Register, and it went into effect on August 28, 2015. On August 28, however, the U.S. District Court for the District of North Dakota (Southeastern Division) stayed the regulation, pending the outcome of a lawsuit by challenging the regulation that was filed on June 29, 2015, by the states of Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, North Dakota, South Dakota, and Wyoming, along with the New Mexico Environment Department and the New Mexico State Engineer.
The Appeals Court action on October 9, extending the stay nationwide, was in response to another lawsuit, this one filed by 18 other states: Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, West Virginia, and Wisconsin.
The Appeals Court majority wrote that they granted the stay because the petitioners (those filing lawsuit) had “demonstrated a substantial possibility of success on their claims.” The petitioners claim that the new regulation’s distance limitations applied to tributary waters are at odds with the U.S. Supreme Court’s 2006 Rapanos decision, and that the Corps of Engineers and U.S. EPA did not include those distance limitations in its proposed rule, so that the public was not given an adequate opportunity to comment on that aspect of the regulation prior to publication of the final rule in May 2015. The Circuit Court majority also found that “the sheer breadth of the ripple effects caused by the [new regulation’s] definitional changes” called for maintaining the status quo while the current litigation runs its course.
For more on the Clean Water Rule, please see the Virginia Water Central News Grouper post at this link.
Jonathan Adler, Sixth Circuit puts controversial ‘waters of the United States’ (WOTUS) rule on hold, Washington Post, 10/9/15.
Jonathan Adler, North Dakota district court blocks controversial ‘Waters of the United States’ rule (UPDATED), Washington Post, 8/28/15.
Wetland Studies and Solutions (Gainesville, Va.,) “EPA & COE Redefine Which Wetlands and Streams are Federally Regulated,” Field Notes, 6/2/15, online at http://www.wetlandstudies.com/resources-regulations/fieldnotes-newsletter.html.
Wetland Studies and Solutions, Inc. (Gainesville, Va.), “Waters of the U.S.: Back to Basics (for now),” Field Notes, 10/14/15, online at http://wetlandstudies.com/newsletters/2015/october/wotus.html.