October 9, 2015

Appeals Court puts nationwide skids on controversial Clean Water Act rule

By M. Reed Hopper Senior Attorney

Today the 6th Circuit issued a nationwide stay of the Corps and EPA’s drastic new rule redefining “waters of the United States” subject to federal control and regulation under the Clean Water Act.  The rule was issued June 29, 2015, and was immediately challenged in ten different suits involving more than 30 states and scores of private parties, like the farmers and ranchers PLF represents.

The 6th Circuit stayed the rule across the country to maintain the status quo while it determines if the court has jurisdiction to hear the challenge on its merits or whether the federal district courts should hear the cases first.  According to the 6th Circuit decision, the court will issue a determination on its own jurisdiction “in a few weeks.”

The stay is timely because a short while ago a district court in North Dakota issued a stay of the rule but limited it to only the 13 states that were parties to that particular suit.  That left the remainder of the states wondering whether the rule applies to them.  Today’s decision removes all doubt and ensures a uniform rule of law in all jurisdictions.

Whichever court ultimately decides the fate of the new rule, today’s decision is noteworthy in its conclusion that the rule appears to be invalid on its face because: (1) it is arguably inconsistent with Supreme Court decisions limiting the scope of the Clean Water Act, including PLF’s Rapanos case; (2) it was apparently issued without adequate public review and comment; and (3), it may undermine the Clean Water Act’s goal of recognizing the primary role of the States in protecting local land and water use.

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