Sixth Circuit upholds stay for ‘waters of the United States’ rule

In a two-to-one ruling, the U.S. Court of Appeals for the Sixth Circuit has upheld a stay of a final rule by the Environmental Protection Agency (EPA) and the Department of Defense (DoD) that seeks to better define “waters of the United States.”

The ruling has great significance for power industry infrastructure. The court ruled Oct. 9 that it was important to maintain the status quo while the case is litigated – even though it’s not yet determined what court has jurisdiction.

A federal district judge in North Dakota had also issued an injunction against the rule, drafted by EPA and the U.S. Army Corps of Engineers, in August. In inunction in that case was sought by a group of states in the West.

The Clean Water Rule clarifies the definition of “waters of the United States,” as used in the Clean Water Act “through increased use of bright-line boundaries” to make “the process of identifying waters protected under the Clean Water Act easier to understand, more predictable and consistent with the law and peer reviewed science, according to the Sixth Circuit.

The rule seeks to accomplish this while protecting streams and wetland.

Among other things, the petitioner states contend that the definitional changes produce an expansion of respondent agencies’ regulatory jurisdiction and dramatically alter the existing balance of federal-state collaboration in restoring and maintaining the integrity of the nation’s waters.

The eighteen petitioner states are Ohio, Michigan, Tennessee, Oklahoma, Texas, Louisiana, Mississippi, Georgia, West Virginia, Alabama, Florida, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah and Wisconsin.

On the other side of the appeals court argument, there are several environmental conservation groups and several states that support the new rule. Those states include New York, Connecticut, Hawaii, Massachusetts, Oregon, Vermont, Washington and the District of Columbia.

“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, following the Supreme Court’s decision in Rapanos v. United States” in 2006, the Sixth Circuit held.

The appeals court also said “the rulemaking process by which the distance limitations were adopted is facially suspect.” Petitioners contend the proposed rule that was published did not include any proposed distance limitations in its use of terms like “adjacent waters” and significant nexus.” Consequently, petitioners contend, the final rule cannot be considered a “logical outgrowth” of the rule proposed.

Circuit Judge Damon Keith dissented. “Because I believe that it is not prudent for a court to act before it determines that it has subject-matter jurisdiction, I respectfully dissent,” Keith said.

“We can enjoin implementation of the Rule if we determine that we have jurisdiction. But until that question is answered, our subject-matter jurisdiction is in doubt, and I do not believe we should stay implementation of the Clean Water Rule,” Keith said in the dissent.

The U.S. Court of Appeals for the Sixth Circuit reviews appeals from the federal district courts in Kentucky, Michigan, Ohio and Tennessee, and from the U.S. Tax Court and certain federal administrative agencies where the non-governmental parties are from the states that make up the Sixth Circuit.

In re: EPA and Department of Defense Final Rule; ‘Clean Water Rule: Definition of Waters of the United States.” Nos. 15-3799/3822/3853/3887.

About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at wayneb@pennwell.com.