The United States Court of Appeals for the Sixth Circuit (“Court”) issued an October 9th opinion staying the United States Environmental Protection Agency and United States Army Corps of Engineers (collectively, “EPA”) final Clean Water Act rule addressing the scope of waters protected under that statute. See State of Ohio, et al v. United States Army Corps of Engineers, et al, No. 15-3799/3822/3853/3887.
The Final Rule defines the key Clean Water Act jurisdictional phrase “waters of the United States.”
A number of states challenged the validity of the Final Rule contending that the definitional changes “effect an expansion of respondent agencies’ regulatory jurisdiction and dramatically alter the existing balance of federal-state collaboration in restoring and maintaining the integrity of the nation’s waters.” The opinion further notes that the States:
… contend the new bright-line boundaries used to determine which tributaries and waters adjacent to navigable waters have a “significant nexus” to waters protected under the Act are not consistent with the laws as defined by the Supreme Court, and were adopted by a process that failed to conform to the rulemaking requirements of the Administrative Procedures Act …
The States moved for a stay of the Final Rule pending completion of the Court’s review.
The Court applied a four factor test determining the appropriateness of a stay and concluded one was warranted. The Court also stated in part:
A stay allows for a more deliberate determination whether this exercise of Executive power, enabled by Congress and explicated by the Supreme Court, is proper under the dictates of federal law. A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing. A stay honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation’s waters. See 33 U.S. C. § 1251(b) (“It is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of the States to prevent, reduce, and eliminate pollution.”) In light of the disparate rulings on this very question issued by district courts around the country – enforcement of the Rule having been preliminarily enjoined in thirteen states – a stay will, consistent with Congress’s stated purpose of establishing a national policy, 33 U.S.C. § 1251(a), restore uniformity of regulation under the familiar, if imperfect, pre-Rule regime, pending judicial review.
One judge dissented on the basis of whether jurisdiction was proper.
Click here to download a copy of the opinion.
The Between the Lines blog is made available by Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. and the law firm publisher. The blog site is for educational purposes only, as well as to give general information and a general understanding of the law. This blog is not intended to provide specific legal advice. Use of this blog site does not create an attorney client relationship between you and Mitchell Williams or the blog site publisher. The Between the Lines blog site should not be used as a substitute for legal advice from a licensed professional attorney in your state.