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Environmental & Natural Resources Legal Alert
October 9, 2015              

Nationwide Stay of EPA/Army Corps "Waters of the U.S." Rule Issued By Sixth Circuit Court of Appeals

The Sixth Circuit Court of Appeals today issued a nationwide temporary stay of the Clean Water Rule, which was jointly adopted earlier this year by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (the "Agencies") to re-define the key term "waters of the United States" under the federal Clean Water Act. The new Rule has been challenged in multiple forums by numerous States and affected parties, including four actions consolidated before the Sixth Circuit. The eighteen States involved in the actions before the Sixth Circuit successfully sought a nationwide stay of the Clean Water Rule pending completion of the court's review of both the challenges to its jurisdiction to decide the issues and the substantive issues presented. The Sixth Circuit granted a temporary stay, finding that the States had demonstrated a substantial possibility of success on the merits of their claims that the Clean Water Rule too broadly and unconstitutionally expands federal jurisdiction over the sorts of "waters" described in the Rule.

The Clean Water Rule has only been in effect for a little over a month, and it is unclear whether today's order will have any impact on jurisdictional determinations, especially in California and other western states where the Agencies have traditionally taken a very aggressive approach on the extent of their jurisdiction. The Agencies have consistently stated that the Rule does not expand the federal government's jurisdiction, and merely "clarifies" ambiguity about the scope of "waters of the United States." Thus, the Agencies may take the position that their determinations would be the same, with or without the new Rule, continuing with "business as usual" until a new rule is reinstated, if ever. Nevertheless, going forward, at least until the Sixth Circuit rules on the merits of the States' claims, this stay order may provide some support for challenges to federal jurisdiction being asserted by the Agencies over certain alleged "waters."

According to the Agencies, the Clean Water Rule "will ensure protection for the nation's public health and aquatic resources, and increase [Clean Water Act] program predictability and consistency by clarifying the scope of 'waters of the United States' protected under the Act," pursuant to and consistent with the U.S. Supreme Court's ruling in Rapanos v. United States, 547 U.S. 715 (2006). In its ruling today, however, the Sixth Circuit concluded that it was "far from clear" that the Rule's treatment of tributaries, adjacent waters, and waters having a significant nexus to navigable waters was consistent with the Supreme Court's directives. The court further found the Agencies' rulemaking process "facially suspect" because the proposed rule, as published for public comment, did not include any distance limitations in determining covered waters, and such limitations, which were nevertheless included in the final rule, were not supported by scientific evidence. A more detailed discussion of the Clean Water Rule is available here.

In issuing the temporary stay, the Sixth Circuit expressed concern over the burden, potentially nationwide, on both government and private parties and the public in general, by the Agencies' "effective redrawing of jurisdictional lines over certain of the nation's waters" in the Clean Water Rule. It concluded that maintaining the status quo, i.e., the "pre-Rule regime" following Rapanos, would allow for a more deliberate determination by the court of whether the Agencies' exercise of executive power was proper. According to the court, "the sheer breadth of the ripple effects caused by the Rule's definitional changes counsels strongly in favor of maintaining the status quo for the time being," a comment that seems to signal that at least the two justices joining in the order may overturn the Rule if and when they reach the merits of the challenges.

Should you have any questions about how the Clean Water Rule, and the nationwide stay, may impact your situation specifically, or the regulatory environment at large, please do not hesitate to contact us. 

Nichols Sandi L Sandi L. Nichols
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