Lamson, Dugan and Murray, LLP, Attorneys at Law

The 6th Circuit Puts the Brakes on EPA Enforcing New Definition of Waters of the US

Posted in Government Regulations, Water Law

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The Environmental Protection Agency (EPA) was set to begin enforcing the new definition of Waters of the United States (WOTUS) on August 28, 2015.  However, several states filed suits in various jurisdictions alleging the EPA lacked the authority to expand its jurisdiction pursuant to the new definition.  Now the United States Court of Appeals for the 6th Circuit has put the brakes on the EPA’s plan to enforce WOTUS until the court can determine whether the new definition is lawful.

Earlier this summer, thirteen states successfully obtained an order from the United States District Court of North Dakota prohibiting the EPA from enforcing the new definition until the states had an opportunity to litigate their claims.   The judge found “the states are likely to succeed on their claim because (1) it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule at issue and (2) it appears likely the EPA failed to comply with [Administrative Procedure Act] requirements when promulgating the Rule.”  Judge Blocks EPA’s ‘waters’ rule from taking effect; find the full order here.  However, the order only applied to those thirteen states who filed suit in North Dakota.  Consequently, the EPA planned to establish the new rule in the remaining 37 states.

On October 9, 2015 the 6th Circuit extended the stay to all states.  Similar to the North Dakota Court, the 6th Circuit found the the petitioners have a substantial possibility to succeed on their claims that the new definition “is at odds” with the Supreme Court’s prior rulings, a product of “facially suspect” rulemaking and not supported by scientific decision making.  Read full opinion here.

In sum, the EPA was not going to be able to effectively enforce the new definition of WOTUS considering the multiple claims filed across the country.  Now the brakes won’t come off WOTUS until and unless the EPA  can obtain a favorable ruling from the 6th Circuit and eventually the U.S. Supreme Court.

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