Environmental Observer
The Associated General Contractors of America | Quality People. Quality Projects.
www.agc.orgOctober 28, 2015 / Issue No. 08-15
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On the Inside
Court Issues Nationwide Stay of EPA/Corps Regulation Redrawing Clean Water Act Jurisdiction
EPA Finalizes Nationwide Electronic Reporting Rule for Stormwater Permits
EPA Launches New Green Infrastructure and Water Resource Resiliency Tools
EPA Finalizes Tighter Rules on Ozone Levels; AGC Explains Impact on Construction
EPA Announces $13.2M in Supplemental Brownfields Redevelopment Funding; Launches New e-Decision Tree for Siting Renewable Energy on Formerly Contaminated Sites
Green Construction
AGC Environmental Solutions: Chapter Helps Develop Resources to Promote Worker Safety on Green Building Projects
News & Events
Volunteers Needed To Serve on Association’s Environmental Steering Committee
AGC Contractors Environmental Conference Provides ‘the Forum to Connect, Lead, and Grow’
Donate to AGC Charities Today by Shopping on AmazonSmile
Court Issues Nationwide Stay of EPA/Corps Regulation Redrawing Clean Water Act Jurisdiction

The United States Court of Appeals for the Sixth Circuit has issued a nationwide stay of the new federal regulation redefining “waters of the U.S.” (WOTUS) for the purposes of the Clean Water Act.   The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers proposed and then finalized the new regulation in an effort to clarify the scope of the statute’s requirements. 

The questions that lie at the heart of this and several other cases is whether the federal agencies went further than the Clean Water Act permits and whether they followed the appropriate procedures.  The court’s order blocks the implementation of the new rule nationwide and preserves the status quo until the court can decide whether it has jurisdiction over the case and the resulting power to address those legal questions.  In an odd twist, the 18 states that filed the lawsuit were the ones arguing that the case actually belongs in a lower court.

The court exercised its discretion to freeze the status quo for several reasons.  The “sheer breadth” of the new rule and its “ripple effects” on the 18 states were certainly among them.  The uncertainty that this and other pending cases have created was certainly another.  But by far, the most interesting was the court’s determination that the petitioners had “demonstrated a substantial possibility of success on the merits of their claims.”  The court found it “far from clear” that the new regulation is “harmonious” with the Supreme Court’s prior rulings on the statute.  The court also found that the federal agencies had “not persuasively rebutted” the state’s claims that the agencies had improperly failed (1) to give the public proper notice that they might write certain “distance limitations” in the new rule or (2) to identify scientific support for the limitations they chose.

One judge did dissent, but he did not, in the process, comment on the merits of the case.  Rather, he insisted that it was inappropriate for the court to exercise its discretion to issue a stay before the court had determined that it has the power to decide its merits. 

This ruling on the heels of a lower court ruling that also cast doubt on new regulation.  In late August, the U.S. District Court for the District of North Dakota issued a preliminary injunction against the implementation of the new rule in the 13 states that had requested the injunction. "The risk of irreparable harm to the States is both imminent and likely," he wrote, adding that, "on the whole, the greater public interest favors issuance of the preliminary injunction."

For more information contact Leah Pilconis at pilconisl@agc.org or Scott Berry at berrys@agc.org. Return to Top

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