WOTUS Rule Stopped Nationwide
On Friday, October 9, the U.S. Court of Appeals for the 6th Circuit has stayed the implementation of the EPA and Army Corps’ of Engineers Clean Water Rule (otherwise known as “WOTUS”). The effect of the decision is to put the rule on hold nationwide.
As we have noted previously, legal activity has occurred simultaneously at the district and appellate court level on the validity of the WOTUS rule. The decision by the 6th Circuit does not change that. It does however stop – at least temporarily - any further implementation of the WOTUS rule until a final decision on its merits. In this latest filing, 18 states including OH, MI, TN, OK, TX, LA, MS, GA, WV, AL, FL, IN, KS, KY, NC, SC, UT and WI petitioned the 6th Circuit for a nationwide stay of the rule, citing the need to preserve the status quo as the merits of the rule are decided.
In their petition the states contend:
1) The Rule’s treatment of tributaries, “adjacent waters”, and waters having a “significant nexus” to navigable waters is at odds with the Supreme Court ruling in Rapanos, where the Court vacated the Sixth Circuit’s upholding of wetlands regulation by the Army Corps of Engineers.
2) It is far from clear that the new Rule’s distance limitations are harmonious with the instruction.
3) The rulemaking process by which the distance limitations were adopted is facially suspect.
4) The proposed rule did not include any proposed distance limitations in its use of terms like “adjacent waters” and significant nexus.
In deciding on granting the stay, the Court concluded “the petitioners have demonstrated a substantial possibility of success on the merits of the case”. (Page 4 of decision) The order offered the following reasons for issuing the nationwide stay:
(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal;
(2) the likelihood that the moving party will be irreparably harmed absent a stay;
(3) the prospect that others will be harmed if the court grants the stay; and
(4) the public interest in granting the stay.
The 6th Circuit ultimately made its decision on this fact:
"What is of greater concern to us, in balancing the harms, is the burden—potentially visited nationwide on governmental bodies, state and federal, as well as private parties—and the impact on the public in general, implicated by the Rule’s effective redrawing of jurisdictional lines over certain of the nation’s waters. Given that the definitions of “navigable waters” and “waters of the United States” have been clouded by uncertainty, in spite of or exacerbated by) a series of Supreme Court decisions over the last thirty years, we appreciate the need for the new Rule. In one sense, the clarification that the new Rule strives to achieve is long overdue. We also accept that respondent agencies have conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-reviewed science, to promulgate new standards to protect water quality that conform to the Supreme Court’s guidance. Yet, 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." (Page 5-6 of decision)
The GCSAA will continue to monitor the legal developments impacting the Clean Water Rule and update our members on gcsaa.org. We will also continue to push for passage of legislation in Congress to stop the rule. Please use our S. 1140 action alert to help support this effort.
Here is a copy of the nationwide order.