This morning a divided panel of the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay, by a 2-1 vote, against the enforcement of the Waters of the U.S. (WOTUS) rule issued under the Clean Water Act by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers. The rule, which took effect August 28, was proposed in April 2014 by EPA and the Corps of Engineers

The WOTUS rule is an effort by EPA and the Corps of Engineers to clarify the scope of federal jurisdiction in light of Supreme Court decisions in 2001 and 2006 concluding that the agencies had adopted a too broad interpretation of the scope of their authority.  Several challenges against the WOTUS rule are pending in court, including a lawsuit filed by a broad coalition made up of agricultural and industry groups, including USPOULTRY, that seeks to vacate WOTUS.

The decision to stay the rule comes weeks after a U.S. District Court judge in North Kadoka issued a temporary injunction against implementing the regulation.  However, that injunction applied only to the 13 states that brought the lawsuit against EPA and the Corps of Engineers.  The order is, “The Clean Water Rule is hereby STAYED, nationwide, pending further order of the court.”  Therefore, EPA will have to cease implementing  the Clean Water Rule in the 37 states that were not subject to the initial injunction.  The stay is in place until the court can determines whether it has jurisdiction over the petitions for review.

The majority of the court found a substantial possibility of success on both merits grounds (that the rule does not comport with even Justice Kennedy’s Rapanos opinion) and procedural grounds (that significant changes in the rule were never put to notice and comment).  .

Circuit Judge David McKeague wrote in the majority opinion that, although the states did not necessarily show that they will suffer immediate harm if the rule moves ahead, “neither is there any indication that the integrity of the nation’s waters will suffer imminent injury if the new scheme is not immediately implemented and enforced.” McKeague was joined in the opinion by Judge Richard Griffin. Judge Damon Keith disagreed with the decision, arguing in a dissenting opinion that the case does not fall within the court’s jurisdiction, so they lack the authority to block the rule.