The US Environmental Protection Agency and US Army Corps of Engineers adopted a new Clean Water Rule on June 29, 2015, to become effective on August 28, 2015. The Clean Water Rule defines the scope of “waters of the United States” under the federal Clean Water Act, and therefore determines the scope of federal regulatory programs such as the National Pollutant Discharge Elimination System, which governs point source discharges, and the Section 404 dredge and fill program for wetlands and other water bodies. I previously summarized the differences between the old and new Clean Water Rules here.

As I wrote about in another post, adoption of the Clean Water Rule triggered a flood of litigation, with 18 states claiming in several lawsuits that the new rule exceeded the power of the USEPA and USACE under the Clean Water Act and US Constitution. Those lawsuits were transferred to and consolidated in the Sixth Circuit Court of Appeal, which issued a nationwide stay on October 9 against implementation of the new Clean Water Rule until the litigation can be resolved, in the case of In re Clean Water Rule.

The Sixth Circuit held that the status quo to be protected during the pendency of the litigation was the prior Clean Water Rule, despite the fact the August 28 effective date for the new rule had already passed. The court found that the states had been timely and diligent in challenging the rule, and preserving the prior rule kept the federal-state relationship in stasis.

The court went on to find that the petitioning states have demonstrated a substantial possibility of success on the merits of their claims. The new Clean Water Rule includes two bright-line distance limitations, one based on being within the 100-year floodplain and 1,500 feet of the ordinary high water mark of a jurisdictional water body (33 CFR § 328.3(a)(6) and (c)(2)), and the other based simply on being within 4,000 feet of the ordinary high water mark (33 CFR § 328.3(a)(8)). The court noted that “it is far from clear that the new Rule’s distance limitations are harmonious with the instruction” of the US Supreme Court in Rapanos v. United States, there is no specific scientific support for the distance limitations included in the final rule, and the distance limitations were not included in the draft rule or subject to public comment, leading to potential violation of the Administrative Procedures Act.

On that basis, the Sixth Circuit granted a stay of the Clean Water Rule, nationwide, pending further resolution by the court. It is worth noting that some of the state petitioners had previously challenged the jurisdiction of the court, arguing that the matter should be heard by the district courts in which their petitions were originally filed. Those procedural wranglings, as well as the need to brief the substantive issues related to the distance limitations, mean that the litigation is unlikely to be resolved very quickly. For now, then, landowners and others who might be subject to the new Clean Water Rule have been granted a reprieve.

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