The Sixth Circuit Court of Appeals issued a nationwide stay of the Clean Water Rule nationwide on October 9, saying it was prudent to do so while litigation continues over the legality of the new EPA regulation which had gone into effect on August 28, 2015. This means that for now the Waters of the U.S. (WOTUS) will be defined as they have been since the last rulemaking in 1986. It is our understanding that EPA and the Corps will be advising their staff nationwide to stop using the new Rule and to resume application of the previous regulations and guidance while the court case proceeds.
The court considered “the pervasive nationwide impact of the new Rule on state and federal regulation of the nation’s waters,” and determined that “the status quo is best preserved by leaving the Rule alone.” Interestingly, the court has not decided “whether this court has exclusive jurisdiction to review the Rule.” Thus we expect continued confusion as various courts weigh in.
The court issued the stay in response to a petition from 18 states1 for review of the Clean Water Rule, and extended the stay to maintain nationwide uniformity during the litigation process; an August 27 decision in the federal district court of southeastern North Dakota had already stayed the regulation in 13 states.2
WSSI will continue to update you as the Clean Water Rule saga continues. If you have questions about how the Clean Water Rule or the suspension of it may impact your projects, please contact Mike Rolband, Mark Headly, Dan Lucey, Mike Klebasko, Ken Wallis, or Ben Rosner.
1 Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, West Virginia, and Wisconsin
2 Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming
