Events and News

U.S. Court of Appeals Releases Stay on Implementation of Waters of the U.S. Rule

October 9, 2015

On Oct. 9, the U.S. Court of Appeals for the Sixth Circuit released a nationwide Order of Stay against implementation of the “Waters of the U.S.” Rule. A group of 18 states asked the U.S. Sixth Circuit Court of Appeals for a nationwide stay to halt the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers "Waters of the U.S." rule while the states' lawsuits are being heard.

The rule changes the definition of “waters of the U.S.” in the Clean Water Act. EPA argues the rule is necessary because Supreme Court Decisions make it unclear what the agency my regulated under the act. AFS submitted comments on the proposed changes arguing they would significantly expand EPA’s authority and lead to substantially higher permitting costs and lengthy project delays.

Multiple suits filed in federal courts earlier this year were consolidated into one to be heard by the appeals court. An injunction halting the rule is in place in 13 states after a ruling in the U.S. District Court of North Dakota, but the agencies moved ahead with implementing and enforcing the rule in the other 37 states. The rule took effect Aug. 28.

In requesting the stay, the states argue that they are suffering irreparable harm under the rule, which they say seizes their sovereign authority over intrastate waters, imposing costs under the Clean Water Act's state-administered programs. They also maintain that they are likely to prevail based in the merits of the case, that the “Waters of the U.S.” rule violates the "notice and comment" requirements under the Administrative Procedures Act, that certain aspects of the rule are arbitrary, and that it violates both the Clean Water Act and the Constitution.

This is important as challengers of the Clean Power Plan rule, such as the U.S. Chamber, National Association of Manufacturers, AFS and other groups and states), will raise similar issues in requesting to stay the effectiveness of that rule pending a final resolution of any challenges.