US appeals court delays Waters of the US rule’s implementation

A federal appeals court delayed implementation of the controversial Waters of the United States (WOTUS) rule until it could fully consider its jurisdiction in states’ legal challenges to the regulation. The Sixth Circuit US Court of Appeals order stayed the US Environmental Protection Agency’s and Army Corps of Engineers (ACE) implementation of the rule that would assert federal control over navigable waters nationwide.

Eighteen states sued in response to the rule, which EPA and ACE issued earlier this year under the federal Clean Water Act (CWA), which would require permits for potentially polluting activity in water bodies the CWA did not cover previously (OGJ Online, May 28, 2015).

EPA and ACE began to implement it in all but 13 states in late August after federal district courts in North Dakota and West Virginia issued conflicting orders on halting it nationwide (OGJ Online, Aug. 28, 2015).

“We conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims,” Judge David W. McKeague said, writing for the majority of the three-member panel considering the states’ petition for a nationwide stay.

“Moreover, the rulemaking process by which the distance limitations were adopted is facially suspect,” McKeague said. “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.’”

The states also argued that the Clean Water Rule developed by EPA and ACE lacked scientific support for its distance limitations, McKeague said. That made the rule not the product of reasoned decision-making and vulnerable to attack as impermissibly “arbitrary or capricious” under the federal Administrative Procedures Act, he noted.

Balancing potential harm

McKeague saw no compelling evidence that the states would suffer irreparable harm, in the form of interference with state sovereignty, or in unrecoverable expenditures of resources as they tried to comply with the new regime, if the appeals court did not stay WOTUS’s implementation while determining its own jurisdiction. “But neither is there any indication that the integrity of the nation’s waters will suffer imminent injury if the new scheme is not immediately implemented and enforced,” McKeague said.

“What is of greater concern to us, in balancing the harms, is the burden—potentially visited nationwide on governmental bodies, state and federal, as well as private parties—and the impact on the public in general, implicated by the rule’s effective redrawing of jurisdictional lines over certain of the nation’s waters,” the judge wrote.

“We are pleased that the Sixth Circuit agreed with Texas and the other states that EPA’s new water rule should be stayed,” Attorney General Ken Paxton (R) said in Austin. “The court’s ruling is good news for property owners whose land would have been subject to extensive new federal regulations due to this overreaching new water rule. In effect, the WOTUS rules are simply a blatant power grab by EPA, and Texas will continue to fight against this ill-conceived and overly broad rule in court.”

Business groups also applauded the appeals court’s Oct. 9 order. “We should resolve the legality of the rule before having to fund the implementation of a very expensive, illegal rule,” said William Kovacs, senior vice-president for environment, technology, and regulatory affairs at the US Chamber of Commerce.

Linda Kelly, National Association of Manufacturers senior vice-president and general counsel, said, “This is tremendous victory for manufacturers against an expansive interpretation by EPA of its jurisdiction to regulate land and water in this country.”

She said, “Once again, the courts have had to step in and restrain the EPA from asserting powers it does not have. Unfortunately, it’s a fact of life these days that we have to ask the courts to intervene, but we are pleased that they see through this attempt by the agency to expand its reach into so many facets of American life.”

Contact Nick Snow at nicks@pennwell.com.

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