On October 9, the Sixth Circuit Court of Appeals stayed the U.S. Environmental Protection Agency/Corps of Engineers Waters of the United States Rule.   That rule reportedly would expand Clean Water Act permitting, enforcement, testing and other requirements to a new group of ditches; buffers to rivers, streams, and wetlands; floodplains, and other areas.   The Sixth Circuit held that the group challenging the rule – which included a number of state and local governments including Georgia, Florida, Tennessee, Mississippi, and Alabama – has a “substantial possibility” of prevailing on the merits, specifically regarding two new buffer thresholds added to the rule just before publication:  EPA/Corps had added a 1,500 foot threshold for ‘adjacent’ areas and 4,000 foot threshold for areas adjacent to the Great Lakes.  The Court specifically noted that it appeared EPA/Corps had contravened the longstanding ‘logical outgrowth’ legal doctrine, which requires that a final rule have some logical connection to the proposed rule in all respects.

The effect of the stay is that EPA/Corps are prohibited from implementing the new rule, which became effective on August 28, 2015.  Following a similar stay order by a District Court in North Dakota, EPA/Corps had stated they would continue to apply the new rule nationwide in most states.  Click HERE for the statement.  The Sixth Circuit explicitly repudiated that position, holding EPA/Corps could not use the new rule until further court review and order.

For more information, please contact Steve O’Day.