USEPA Enjoined From Enforcing New WOTUS Rule

Following a decision by a district court in North Dakota to stay the effectiveness of USEPA’s new rules re-defining the “waters of the United States” in thirteen states – the United States Circuit Court of Appeals for the Sixth Circuit has now issued a stay effective nationwide, blocking implementation of the rule by USEPA and the Army Corps of Engineers. The rule which would have potentially expanded the federal government’s jurisdiction over previously unrecognized waters and wetlands now must await a final decision by the court before it can become effective.

In explaining its decision, a split court pushed aside substantial jurisdictional questions before it and stated, “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.”

The case brought together under a single umbrella a series of substantive challenges to the rule by different industry groups and eighteen states.

The rule, which was issued in May of this year, was estimated by the agency to expand its jurisdiction by 3% over more waterways and wetlands located in the United States. With this extended jurisdiction, more permits would be required to allow for construction and development activities, such as the building of roads and bridges in and around these small and often times temporarily flowing waters. The rule could also potentially impact programs such as the federal SPCC program by greatly expanding the potential number of sites subject to the program. There has also been substantial concern expressed by farm groups that the rule attempts to assert federal jurisdiction over agricultural activities that had been exempt from federal regulation under previous interpretations of the Clean Water Act.

The federal agencies have pursued this rule-making in some form for almost ten years since a series of rulings by the United States Supreme Court attempted to draw lines regarding how one identifies which waters fall under federal jurisdiction. USEPA stated that the rule would clarity how it would interpret those decisions and streamline the process for identifying federal waters subject to its jurisdiction.

In a boost to those looking to challenge the rule, the court indicated that “[P]etitioners have demonstrated a substantial possibility of success on the merits of their claims,” stating that USEPA’s new guidelines for determining whether water is subject to federal control — based mostly on the water’s distance and connection to larger water bodies — is “at odds” with prior Supreme Court rulings.

The court still has much work to do. As mentioned above, before it can determine whether a permanent injunction against implementation of the rule is required, it must first address the issue of jurisdiction which has been challenged by the government, environmental groups, and even the petitioners in the case before the court and others who argued that the district courts have jurisdiction to resolve this issue, not the courts of appeal. The court will consider this jurisdictional issue and if it finds the case is properly before it, will determine whether the definition of WOTUS proposed by the federal government is consistent with the Clean Water Act and whether USEPA acted arbitrarily in the development of the rule.

A full text of the ruling can be found here:

Armando Benincasa concentrates his practice in the areas of energy law, environmental law, environmental litigation, administrative law, government affairs and lobbying. His practice consists of cases involving permitting and regulatory requirements for natural resources, including coal and oil and gas, solid waste, water resources, underground storage tanks, voluntary remediation, and the drafting of rules and statutes related to the environment.
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