CWC is pleased to report on last week’s ruling by the United States Court of Appeals for the Sixth Circuit issuing a nationwide stay on the so-called “WOTUS” rule.” Under that rule the EPA and the United States Army Corps of Engineers expanded the definition of the “waters of the United States” which are subject to federal regulation under the Clean Water Act (CWA), with potentially significant and controversial results for the manufacturing, agriculture, development, oil and gas recovery, and utility industries. The WOTUS rule had already been stayed in 13 states, and many challenges against the rule are pending in courts around the country.

In its decision the Sixth Circuit put the WOTUS rule on hold until the question of whether the court actually has jurisdiction to determine the rule’s validity is answered. (The question of which court has jurisdiction over this question arises from particular language in the CWA, which states that certain types of rules promulgated under the statute are to be reviewed in the U.S. Courts of Appeals, while others are subject to review in the U.S. District Courts.)

In granting the stay, the Sixth Circuit panel found that the coalition of 18 states challenging the WOTUS rule had demonstrated a substantial likelihood of success in proving that the rule is invalid based primarily on their arguments that (1) the rule’s definition of “waters of the United States” is at odds with a pertinent U.S. Supreme Court definition set forth in a 2006 case, and (2) the process by which the WOTUS rule was finalized was “facially suspect,” because the public was not given adequate notice of some of the rule’s provisions in the proposed rule.

The panel’s majority concluded that there were good reasons to suspend the rule’s implementation pending resolution of the jurisdictional question, citing specifically the burden – on both government and private individuals – of the rule’s “effective redrawing of jurisdictional lines over certain of the nation’s waters.” While acknowledging the uncertainty surrounding various interpretations of the “waters of the United States” definition and the need for clarification, the Court indicated that “the sheer breadth” of the WOTUS rule’s ripple effects called for maintaining the status quo for the time being. This finding makes it likely, though there is no guarantee, that if the Sixth Circuit ultimately decides that it has jurisdiction over the case, it will ultimately invalidate the WOTUS rule.

As a practical matter, the Sixth Circuit’s ruling means that the pre-WOTUS “waters of the United States” definition remains in effect for now, but the Court said that it expects the jurisdictional question to be decided in a matter of weeks, so stay tuned. We will keep you updated on this and other developments affecting federal regulation of our nation’s waters.

Read the Sixth Circuit stay here.