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, found HERE, 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 – were likely to win or ‘prevail 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 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 it 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.