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6th Cir. Halts Enforcement of EPA Clean Water Rule

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By Casey C. Sullivan, Esq. on October 14, 2015 7:58 AM

The EPA will not be allowed to enforce its Clean Water Rule after the Sixth Circuit issued an order to stay the rule on Friday. The new rule sought to clarify which waters are protected under the Clean Water Act, something which has proven surprisingly difficult in the past. Eighteen states sued to stop the rule, leading to the Sixth Circuit's order, which applies nationwide.

The Clean Water Rule seeks to extend pollution protections, and EPA jurisdiction, to bodies of water such as streams and wetlands. It faces opposition from politicians and business interests who viewed the new rule as regulatory overreach.

Clean Water, but Which Water?

The Clean Water Act seeks to protect the "waters of the United States" from pollution and degradation. But defining which waters are WOTUS has proven difficult and controversial. Rivers, sure. And there's little argument over lakes. But what about watery lands, like swamps and marshes? Smaller waters, like temporary streams? Does the Clean Water Act give the EPA authority to protect them against pollution? Sort of.

Two Supreme Court cases in the early 2000s limited the EPA's authority to prevent pollution discharges into water. In SWANNC and Rapanos, the Court limited Clean Water Act protections to waters of the United States that were actually navigable or which shared a "significant nexus" with navigable waters. The opinions didn't make for the clearest bright-line rule. In fact, Rapanos splintered the Court so much that there was no majority opinion, leaving Circuits split over just what opinion to apply.

A Clarifying Rule, or Pernicious Federal Power Grab

The Clean Water Rule seeks to clarify the meaning of waters of the United States -- or to enact a massive EPA power grab, depending on who you ask. The rule extends protection to navigable waters and their tributaries, adjacent waters, and "features [which] can function like a system and impact the health of downstream waters," such as vernal pools, bays, and prairie wetlands. The rule reduces the need for case-specific analysis and does not create new permitting requirements, according to the Agency.

The Clean Water Rule received staunch opposition from congressional Republicans, farmers, energy companies, and many state governors, who viewed it as an overextension of government regulation. Eighteen states sued to stop the rule, while seven states joined to defend it. The split was fairly red vs. blue.

The challengers were Ohio, Michigan, Tennessee, Oklahoma, Texas, Louisiana, Mississippi, Georgia, West Virginia, Alabama, Florida, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah and Wisconsin. The states which joined the EPA to defend the rule were New York, Connecticut, Hawaii, Massachusetts, Oregon, Vermont, Washington and the District of Columbia.

The states challenging the EPA argued that the rule overstepped the bounds of the Clean Water Act, infringed on state authority, and would lead to the regulation of puddles and ditches.

The Sixth Circuit made no ruling as to the validity of the rule -- or even determined if it had proper jurisdiction -- but issued the stay in order to silence "the whirlwind of confusion that springs from uncertainty about the requirements of the new rule and whether they will survive legal testing."

It recognized that the states faced no "imminent injury," but concluded that the country's waters did not either. The stay stops implementation of the rule nationwide, not just for the 18 states challenging it. For its part, the EPA seems unfazed by the delay, issuing a statement explaining that it "respect the court's decision to allow for more deliberate consideration" and looks forward to defending the rule.

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