EPA Rule on “Waters of the United States” Subject to Nationwide Stay

October 9, 2015 | Energy, Natural Resources & Utilities


The Sixth Circuit Court of Appeals today issued a nationwide stay of a Clean Water Act (“CWA”) regulation that broadly increased governmental jurisdiction over waters and wetlands. The rule (“Rule”), issued by the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“ACE”) in May 2015, was an attempt to clarify the scope of federal regulatory jurisdiction over surface waters. Earlier efforts by the EPA and ACE to define such waters had been struck down by the U.S. Supreme Court as being unduly broad. The Rule has been challenged in numerous courts across the country, and enforcement had been stayed as to thirteen states as a result of a North Dakota District Court ruling issued in August. See our client alert entitled “Implementation of EPA’s New Clean Water Rule Halted in 13 States” available here.

In its ruling, the Sixth Circuit panel concluded that petitioners demonstrated a substantial possibility of success on the merits of their claims, which included the Rule’s jurisdictional reach to tributaries, “adjacent waters,” and waters having a “significant nexus” to navigable waters, which the Court found to be at odds with the United States Supreme Court’s seminal ruling on scope of the Clean Water Act in Rapanos. (Rapanos v. United States, 547 U.S. 715 (2006)). The Court also noted that, as the Rule has already been stayed in 13 states, its further ruling will serve to establish nationwide uniformity while the litigation proceeds.

Also at issue is whether the courts of appeal or district courts have jurisdiction to handle CWA challenges filed by various states and private parties. Industry groups, states and environmentalists have argued to the Sixth Circuit that challenges to the Rule should be decided at the district court level. The government has argued that the courts of appeal have jurisdiction. In its decision, the Sixth Circuit called for further briefing on the question.

We will keep you apprised of further developments as the litigation proceeds.

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