On October 9, 2015, the Sixth Circuit Court of Appeals granted a nationwide stay of the Clean Water Rule (Rule), defining “waters of the United States,” adopted by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers. State of Ohio v. U.S. Army Corps of Eng’rs, Nos. 15-3799, 15-3822, 15-3853, 15-3887 (6th Cir. Oct. 9, 2015) (State of Ohio). The stay was sought by 18 states (States) whose four separate actions were consolidated in the Sixth Circuit. The decision follows a North Dakota federal judge’s decision to preliminarily enjoin the Rule in 13 states, covered by a previous Somach Simmons & Dunn Environmental Law and Policy Alert. The Sixth Circuit’s decision has the furthest reaching impact on the Rule so far because the stay is effective nationwide, rather than only in select states.

The States in State of Ohio sought a stay to maintain the status quo regarding the Clean Water Act’s implementation while the court determines whether it has jurisdiction to review challenges to the Rule. “Status quo,” the court clarified, would be the water law regime from before the Rule went into effect, rather than leaving the Rule in place.

Turning to the elements of a motion to stay, the court first concluded that the States demonstrated a substantial possibility of success on their claim that the Rule is contrary to Rapanos, a keystone Supreme Court case defining “waters of the United States.” Additionally, the court agreed with the States that the rulemaking process was facially suspect and potentially violated the Administrative Procedure Act. While the court found that neither side presented a compelling argument supporting immediate irreparable harm, it found that the burden of redrawing jurisdictional lines over waters across the country could be great, considering the uncertainty involving the existing definitions of “waters of the United States” and “navigable waters.” The court appreciated the long-standing need to clarify which waters are protected by the Clean Water Act, but ultimately determined that “the sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being.”

For questions please contact Lauren Bernadett at 916-446-7979, or lbernadett@somachlaw.com.

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