Today, the Sixth Circuit Court of Appeals stopped the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers from implementing the new federal rule defining waters of the U.S., sometimes known as the WOTUS rule.
The controversial rule, first proposed as a draft rule in 2014 and legally effective on August 28, 2015, redefines the waters that are subject to the federal Clean Water Act.
The Clean Water Act regulates discharges into waters of the U.S. and the quality of those waters under programs best known by their acronyms: the NPDES program and TMDL program.
Most significant for Florida, the WOTUS rule would decide what waters are considered federal wetlands. Such wetlands require a permit from the Corps before they can be altered, and also involve review under the Endangered Species Act.
Many states, local governments, business owners and farmers voiced disagreement over the apparent breadth of the rule’s coverage and filed numerous legal challenges to the rule around the country. Most of those legal cases were consolidated in the Sixth Circuit Court of Appeals. Challengers sought to stay the rule from implementation while the legal cases were resolved before the courts.
On Friday, Oct. 9, the Sixth Circuit Court of Appeals ruled in favor of the challengers on the stay.
The court focused on the multiple portions of the rule that used fixed distances from some waters to determine that other waters within those distances were per se "waters of the U.S." Specifically, the court believed that the challengers were likely to prevail in their challenges against those distance limitations because it found those distance limitations inconsistent with recent Supreme Court precedent, procedurally flawed, and lacking scientific support.
Although the court left open the possibility that further litigation may resolve challengers' concerns, it concluded that the federal agencies had not persuasively rebutted the challengers’ arguments. The procedural flaws are most problematic for the EPA and the Corps because legal doctrines do not provide the agencies with any judicial deference on procedural issues, unlike policy and scientific issues.
The court’s stay may only be in place for a matter of weeks, however, until it determines whether it had jurisdiction to enter the stay. If the court concludes it lacks such jurisdiction, then the stay will be dissolved while the litigation continues.
This early ruling raises real questions about whether the rule will ultimately survive the court’s scrutiny
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Gunster's environmental and land use team continues to monitor this issue. If you have any questions, please contact Greg Munson or any member of the firm's environmental and land use attorneys.
