6th Circuit Stays New EPA Clean Water Rule

by Lorraine Bailey, Court House News, October 9, 2015 

(CN) - The Sixth Circuit on Friday stayed a new Environmental Protection Agency rule defining "Waters of the United States" that 31 states accuse of trampling their sovereignty.

Attorneys general from 31 states asked the EPA and the Army Corps of Engineers in July to delay implementation of a Clean Water Act rule for at least nine months for judicial review.

The rule defines "Waters of the United States" under the Clean Water Act. The states claim it asserts federal jurisdiction over streams, wetlands and other water bodies previously considered to be under their jurisdiction.

The EPA cited the need for clean drinking water and clean water as an economic driver as the impetus for its new rule, and Supreme Court rulings in 2001 and 2006 in which justices disagreed about which waters were covered by the Act.

"About 117 million Americans - one in three people - get drinking water from streams that lacked clear protection before the Clean Water Rule," the agency said in a May 27 statement about the new rule. "The health of our rivers, lakes, bays, and coastal waters are impacted by the streams and wetlands where they begin."

Over the next six weeks, 31 states filed five lawsuits in federal courts throughout the country, claiming the rule trampled state sovereignty.

In their letter, essentially asking for a time out until a judicial review of the rule can take place, the attorneys general said the "increase in EPA's and ACOE's jurisdiction comes at the direct expense of states - which previously had exclusive jurisdiction over state waters."

"Such action exceeds the statutory authority of Congress in enacting the Clean Water Act under the Commerce Clause and infringes upon the states' rights under the Tenth Amendment," their letter said.

The Sixth Circuit heard arguments for a stay from 18 states, led by Ohio, and granted it on Friday.

Several states opposed a stay, including New York Connecticut, Hawaii, Massachusetts, Oregon, Vermont, Washington, and the District of Columbia.

But in the interest of preserving the status quo, a 2-1 majority of the Cincinnati-based appeals court found a stay appropriate.

"Considering the pervasive nationwide impact of the new Rule on state and federal regulation of the nation's waters, and the still open question whether, under the Clean Water Act, this litigation is properly pursued in this court or in the district courts, we conclude that petitioners have acted without undue delay and that the status quo at issue is the pre-Rule regime of federal-state collaboration that has been in place for several years," U.S. Circuit Judge David McKeague wrote.

The petitioning states have a good possibility of success on their claims, the court found.

"The rulemaking process by which the distance limitations were adopted is facially suspect. Petitioners contend the proposed rule that was published, on which interested persons were invited to comment, did not include any proposed distance limitations in its use of terms like 'adjacent waters' and 'significant nexus,'" McKeague wrote. "Consequently, petitioners contend, the Final Rule cannot be considered a 'logical outgrowth' of the rule proposed, as required to satisfy the notice-and-comment requirements of the APA."

U.S. Circuit Judge Damon Keith dissented, stating that he would not issue a stay in a case before deciding whether the court had subject-matter jurisdiction.

Michigan, Tennessee, Oklahoma, Texas, Louisiana, Mississippi, Georgia, West Virginia, Alabama, Florida, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah, and Wisconsin are also parties to the consolidated lawsuit.

PDF: Court Order Text