Sixth Circuit temporarily stays EPA’s new Clean Water Rule
Sixth Circuit temporarily stays EPA’s new Clean Water Rule

[JURIST] The Sixth Circuit Court of Appeals [official website] on Friday issued a temporary stay [opinion, PDF] on the Environmental Protection Agency’s (EPA) [official website] new Clean Water Rule (Rule) [text, PDF] that defines “waters of the US.” In a split decision, the court decided the EPA’s Rule that originally became effective on August 28, 2015 deserves further judicial analysis and the Rule will not go into effect until further action is taken by the court. The new Clean Water Rule defined navigable waters to include tributaries and wetlands. The Rule clarifies which waterways would be protected by the Clean Water Act of 1972 [text]. Currently 18 states are mounting challenges to the new Rule. The panel found that a stay of the new rule was not likely to injure any waterways and that if the Rule was continued to be enforced it would likely cause the states irreparable harm and create confusion over the limits of waters of the US. The Petitioner states argued that the definitional changes effect 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. Petitioners further argued the new bright-line boundaries used to determine which tributaries and waters adjacent to navigable waters have a “significant nexus” to waters protected under the Act are not consistent with the law as defined by the Supreme Court, and were adopted by a process that failed to conform to the rulemaking requirements of the Administrative Procedures Act (APA) [text].

US District Judge Ralph Erickson of the US District Court of the District of North Dakota [official website] in Fargo in August, granted a preliminary injunction [JURIST report] against the rule. The rule is of particular concern to the agriculture industry, as farmers argue that it could be applied to drainage ditches on farmland. In another recent case involving the CWA, two environmental groups filed a lawsuit [JURIST report] in December against the Environmental Protection Agency accusing the agency of failing to comply with a court order to strengthen storm drain pollution regulation. In 2013 the US Supreme Court ruled unanimously that water flowing through a concrete channel from different points in the river does not create a pollutant [JURIST report] under the CWA.