In an attempt to “temporarily silence the whirlwind of confusion that springs from uncertainty,” the U.S. Court of Appeals for the Sixth Circuit has blocked the new rule defining “waters of the United States” under the Clean Water Act from going into effect nationwide. On October 9, 2015, the Sixth Circuit issued a stay of the new rule until the court decides whether jurisdiction over the challenges brought by 18 states against the new rule properly lies in the court of appeals or in the federal district courts. U.S. Environmental Protection Agency v. Ohio et. al., No. 15-3751 (6th Cir. Oct. 9, 2015).
The stay means that the new rule will not be implemented anywhere in the country, although the court will likely revisit the stay once it resolves the jurisdictional issue. Until such time, the prior definition of “waters of the United States” in place before the new rule took effect on August 28, 2015 will govern Clean Water Act jurisdictional determinations.
Since EPA and the U.S. Army Corps of Engineers jointly published a controversial final rule defining “waters of the United States” in late June 2015, numerous challenges to the new rule have been filed both in federal district and circuit courts.
At the district court level, the rulings thus far have been quite varied. The most notable district court ruling came from North Dakota, which granted a preliminary injunction on August 27, 2015—the day before the new rule was slated to take effect—stopping the rule from being implemented in 13 states. North Dakota v. U.S. Environmental Protection Agency, No. 3:15-cv-00059 (D.N.D. Aug. 27, 2015). Two other district courts found they lacked jurisdiction to hear challenges to the rule. In addition, EPA and the Corps have asked the U.S. Judicial Panel on Multidistrict Litigation to consider consolidating the multiple district court cases filed across the country. Oral arguments on the government’s motion took place on October 1, 2015, and the motion is still pending at this time. Several district courts have stayed challenges to the new rule until the MDL Panel makes a decision on the consolidation of these cases.
At the circuit court level, the MDL Panel consolidated eight different actions filed in different circuit courts within the Sixth Circuit. The 18 states involved in these challenges moved for a stay until the court completes its review of the new rule.
The Sixth Circuit’s Decision
Before deciding the issue of whether a stay was appropriate, the Sixth Circuit first addressed the threshold issue of what rule should govern if it were to grant a stay. The court explained that the purpose of a stay is to preserve the status quo while litigation is pending. The court rejected the federal government’s claim that the new rule, which was effective in 37 states, represented the prevailing status quo. The court concluded that the preexisting definition of “waters of the United States” constituted the status quo because that definition had been in place for a long period of time.
Next, the Sixth Circuit held a stay of the new rule pending its decision regarding jurisdiction was justified for two primary reasons. First, the court concluded there was a substantial possibility that the challenge to the new rule would succeed. The court reasoned that the new rule’s definitions of “tributaries,” “adjacent” waters and waters with a “significant nexus” to navigable waters were inconsistent with the U.S. Supreme Court’s decision in Rapanos v. United States, 547 U.S. 715 (2006). Further, the court explained the rulemaking process likely was not conducted in accordance with the Administrative Procedure Act, 5 U.S.C. § 551 et. seq.
Second, the court found that the new rule had the potential to burden both public and private entities by significantly altering the reach of the Clean Water Act’s jurisdiction. According to the court, “the sheer breadth of the ripple effects caused by the Rule’s definitional changes” weighed in favor of granting a stay.
As a result of the Sixth Circuit’s stay, the new rule is not currently effective anywhere in the country. Instead, the preexisting regulatory definition of “waters of the United States” will govern, until and unless the stay is lifted.
The problem is that this preexisting definition has been notoriously vague since the issuance of the Rapanos decision nearly 10 years ago. Landowners, developers, local communities and regulators have struggled mightily to ascertain the scope of what constitutes a “significant nexus” to a traditional navigable water under that decision. It is precisely because of this uncertainty under Rapanos that a new regulatory definition was needed. Now that the new definition has been put on hold, however, this uncertainty will continue for the duration of the stay.
Given the enormous breadth of the new rule’s coverage, its fate in the courts is also highly uncertain—a key factor underlying the Sixth Circuit’s stay. Ultimately, it may very well be up to the Supreme Court to weigh in on the validity of the new rule and on the fundamental question of what constitutes a “water of the United States” under the Clean Water Act.
© 2015 Perkins Coie LLP