Appeals Court Halts Controversial WOTUS Rule

The rule would significantly increase federal jurisdiction over the nation’s waters by redefining them, and subsequently, increase costs to any businesses operating in or near covered waters.

October 12, 2015

WASHINGTON – On Friday, a federal appeals court halted a high-profile Obama administration rule defining the scope of the Clean Water Act, “marking the latest legal blow to the controversial policy,” reports E&E Publishing.

In late August, a federal judge in North Dakota temporarily blocked the EPA’s expanded Waters of the United States (WOTUS) rule for 13 states, finding that since the new rule “would encompass virtually all EPA actions under the Clean Water Act,” and not just permitting procedures, the law gives original jurisdiction over the measure to the district courts.

On October 9, judges on the 6th U.S. Circuit Court of Appeals in Cincinnati issued an order granting states' request to stay the Waters of the U.S. rule while the court considers its legality: “The Clean Water Rule is hereby STAYED, nationwide, pending further order of the court," according to the split opinion issued by the court today. "... [W]e conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims,” the judges wrote.

The order comes in response to challenges by 18 states to the Waters of the U.S. rule from EPA and the Army Corps of Engineers and puts the regime on hold pending legal review. The rule aimed to clarify which waters fall under the jurisdiction of the Clean Water Act, but the regulation has been fiercely criticized by some states and agricultural and other industry groups.

The states argued they would face irreparable harm from the rule and the patchwork of implementation. "Given the rule's manifest illegality and harms to the states, this inconsistent application of the WOTUS rule should not be allowed to stand," the judges wrote.

NACS provided information for members on achieving compliance with the rule, which was set to take effect on August 28.

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