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Court Issues Nationwide Stay of EPA/Corps WOTUS Rule

Blocks Implementation of Rule Nationwide & Preserves Status Quo
 
The United States Court of Appeals for the Sixth Circuit has issued a nationwide stay of the new federal rule redefining “waters of the U.S.” (WOTUS) for the purposes of the Clean Water Act (CWA).   The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers issued the new rule to clarify the scope of the CWA’s requirements.  The court’s order blocks the implementation of the new rule nationwide and preserves the status quo--meaning the WOTUS regulations in place before the new rule took effect are what contractors should continue to abide by--until the court can decide whether it has jurisdiction over the case and the resulting power to address those legal questions. 
 
The court chose to maintain the status quo for several reasons.  The “sheer breadth” of the new rule and its “ripple effects” on the 18 states that filed the lawsuit are among them.  The uncertainty that this and other pending cases have created is another.  The most interesting is the court’s determination that the 18 states “demonstrated a substantial possibility of success on the merits of their claims.”  The court found it “far from clear” that the new regulation is “harmonious” with the Supreme Court’s prior rulings on the CWA.  The court also found that the federal agencies had “not persuasively rebutted” the state’s claims that the agencies had improperly failed: (1) to give the public proper notice that they might write certain “distance limitations” in the new rule; or (2) to identify scientific support for the limitations they chose.
 

This ruling on the heels of a lower court ruling that also cast doubt on new regulation.  In late August, the U.S. District Court for the District of North Dakota issued a preliminary injunction against the implementation of the new rule in the 13 states that had requested the injunction. "The risk of irreparable harm to the States is both imminent and likely," he wrote, adding that, "on the whole, the greater public interest favors issuance of the preliminary injunction." 

Download: Environmental Protection Agency & Dept. of Defense Final Rule; "Clean Water Rule: Definition of Waters of the United States," 80 Fed. Reg. 37,054 (June 29, 2015). 

For more information contact Leah Pilconis at pilconisl@agc.org or Scott Berry at berrys@agc.org

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