WASHINGTON, D.C., Oct. 9, 2015 – In a significant victory for the agricultural and business sectors, a federal appellate court this morning suspended nationwide implementation of the “Waters of the U.S.” (WOTUS) rule until further order of the court.
The rule, which took effect Aug. 28, was proposed in April 2014 by the EPA and the U.S. Army Corps of Engineers to clarify the agencies’ authority under the Clean Water Act over various waters. That jurisdiction – based on several U.S. Supreme Court decisions – had included “navigable” waters and waters with a significant hydrologic connection to navigable waters. The WOTUS regulation broadened that to include, among other water bodies, upstream waters and intermittent and ephemeral streams such as the kind farmers use for drainage and irrigation. It also encompasses lands adjacent to such waters.
The decision to “stay” the rule, granted by the U.S. Court of Appeals for the 6th Circuit in Cincinnati, comes a little more than month after a U.S. District Court judge issued a temporary injunction against implementation of the regulation. That injunction, however, applied only to the 13 states that brought the lawsuit against EPA and the Corps of Engineers in the North Dakota-based District Court.
But, said the Court of Appeals, “In light of the disparate rulings … issued by district courts around the country — enforcement of the Rule having been preliminarily enjoined in 13 states — a stay will, consistent with Congress’s stated purpose of establishing a national policy, restore uniformity of regulation under the familiar, if imperfect, pre-Rule regime, pending judicial review.”
In reaching its decision, the court found that there’s a substantial likelihood that EPA’s WOTUS rule fails to comply with the Supreme Court’s instructions in previous Clean Water Act cases and that the agency’s actions in the rule-making process, to which NPPC objected at the outset, are “facially suspect.”