“Waters of the U.S.” on hold as court issues nationwide stay on Environmental Protection Agency/Army Corps regulation

The U.S. Court of Appeals for the Sixth Circuit has issued a nationwide stay of the new federal regulation redefining “waters of the U.S.” (WOTUS) for the purposes of the Clean Water Act. The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers proposed and then finalized the new regulation in an effort to clarify the scope of the statute’s requirements. AGC of America successfully fought for changes during the rulemaking process, but the rule still appears likely to create a range of new problems and leaves ample room for improvement.

The questions that lie at the heart of this and several other cases is whether the federal agencies went further than the Clean Water Act permits and whether they followed the appropriate procedures. The court’s order blocks the implementation of the new rule nationwide and preserves the status quo until the court can decide whether it has jurisdiction over the case and the resulting power to address those legal questions. In an odd twist, the 18 states that filed the lawsuit (Washington State was not one) were the ones arguing that the case actually belongs in a lower court.

The court exercised its discretion to freeze the status quo for several reasons. The “sheer breadth” of the new rule and its “ripple effects” on the 18 states were certainly among them. The uncertainty that this and other pending cases have created was certainly another. But by far, the most interesting was the court’s determination that the petitioners had “demonstrated a substantial possibility of success on the merits of their claims.” The court found it “far from clear” that the new regulation is “harmonious” with the Supreme Court’s prior rulings on the statute. The court also found that the federal agencies had “not persuasively rebutted” the state’s claims that the agencies had improperly failed (1) to give the public proper notice that they might write certain “distance limitations” in the new rule or (2) to identify scientific support for the limitations they chose.

One judge did dissent, but he did not, in the process, comment on the merits of the case. Rather, he insisted that it was inappropriate for the court to exercise its discretion to issue a stay before the court had determined that it has the power to decide its merits.

This ruling on the heels of a lower court ruling that also cast doubt on new regulation. In late August, the U.S. District Court for the District of North Dakota issued a preliminary injunction against the implementation of the new rule in the 13 states that had requested the injunction. “The risk of irreparable harm to the States is both imminent and likely,” he wrote, adding that, “on the whole, the greater public interest favors issuance of the preliminary injunction.”

For more information contact AGC of America’s Leah Pilconis at pilconisl@agc.org or Scott Berry at berrys@agc.org. Visit AGC of Washington’s new website for the latest policy news and information.