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Schwabe in the Field:  Sixth Circuit Court of Appeals Stayed the EPA's Water Rule - WOTUS

October 9, 2015


This morning, the Sixth Circuit Court of Appeals stayed the EPA's Water Rule: Definition of Waters of the United States ("WOTUS" or "the rule"). This stay is in effect nationwide. Eighteen states[1] sought the stay. They challenge the validity of EPA's WOTUS rule in a number of cases—all of which have been consolidated into one case in the Sixth Circuit. The stay was granted over the objection of the EPA and some states that support the rule, including Hawaii, Oregon, and Washington.

Citing to the Supreme Court's Rapanos v. United States decision (which was also a reversal of the Sixth Circuit), Judges McKeague and Griffin delivered the stay order. It will maintain the "status quo," reverting back to the existing process for making determinations of what is a water of the United States under the Clean Water Act for the time being. Judge Keith dissented.

The Court placed great emphasis on restoring uniform regulation, reducing uncertainty, and maintaining the balance between state and federal jurisdiction while the merits of the case are being decided. The Court also found that, based on the preliminary record before them, there is "a substantial possibility of success on the merits" of the states' claims—noting the EPA's rule is possibly at odds with the Supreme Court's ruling in Rapanos. The opinion also calls the EPA's rulemaking process adopting distance limitations for jurisdictional waters "facially suspect."

The stay will remain in effect nationwide until jurisdiction is determined as to whether the Sixth Circuit is the proper court to hear the underlying case.

For more information on the impact these rules will have on landowners, and an examination of the ongoing legal challenges to the rule, please see "Schwabe in the Field: North Dakota Judge Enjoins WOTUS Rule as Environmental Groups File Suit", "Schwabe in the Field: Lawsuits Challenge EPA's WOTUS Rules," and "Do the Clean Water Rules Matter?".

[1] The States of Ohio, Michigan, Tennessee, Oklahoma, Texas, Louisiana, Mississippi, Georgia, West Virginia, Alabama, Florida, Indiana, Kansas, Kentucky, South Carolina, Utah, and Wisconsin and the North Carolina Department of Environment and Natural Resources.


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