Appeals court issues stay on Waters of the U.S. rule

The Sixth Circuit Court of Appeals Friday issued a nationwide stay prohibiting implementation of the controversial Waters of the United States rule by the United States Environmental Protection Agency and the Army Corps of Engineers. The rule was challenged in the court by 18 states, including Montana.

The Environmental Protection agency and the Army Corps of Engineers released the new rule for public comment in April 2014, ostensibly for the purpose of clarifying which waters fall under the jurisdiction of the federal Clean Water Act.

The American Water Works Association prepared a report last year, written by principal scientist Dr. Mark McElroy, to examine the definition of the new rule and its potential impact upon American water ways and water systems.

“The proposal is intended to resolve uncertainty concerning the (Clean Water) Act jurisdiction, particularly in light of several decisions by the United States Supreme Court ...,” McElroy wrote. “The United States Environmental Protection Agency and the Corps state that the proposed rule will enhance protection of the nation’s public health and aquatic resources and increase Clean Water Act program predictability and consistency by clarifying the scope of those waters that are protected under the Act.”

The changing definition of the “waters of the United States” codifies a number of existing regulatory processes as well as some categorical exemptions, but results in a net increase in the number of waterway, bodies of water and wet lands covered by Clean Water Act regulations.

“The proposed rule’s net effect is that some bodies of water and associated ‘wet’ lands will be defined as waters of the United States that previously might not have been under a case-by-case review,” McElroy wrote. “As noted elsewhere, this may bring about both greater source water protection and greater permit and mitigation requirements.”

The implementation of the new rule was immediately challenged in federal court. Challengers aruged the net increase in covered area represented an inappropriate federal expansion of regulatory authority. They also challenged the manner in which the final rule was adopted, arguing the distance requirements adopted in the rule violated the rulemaking requirements of the federal Administrative Procedures Act.

The court, while not ruling on the merits of the case, acknowledged the likelihood that the states would prevail in their challenge.

“We conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims,” Justice David W. McKeague wrote in the decision. “Petitioners first claim that the rule’s treatment of tributaries, ‘adjacent waters’ and waters having a ‘significant nexus’ to navigable waters is at odds with the Supreme Court’s ruling in Rapanos, where the court vacated the Sixth Circuit’s upholding of wetlands regulation by the Army Corps of Engineers. Even assuming, for the present purposes, as the parties do, that Justice Kennedy’s opinion in Rapanos represents the best instruction on the permissable parameters of ‘waters of the United States’ as used in the Clean Water Act, it is far from clear that the new rule’s distance limitations are harmonious with that instruction.”

McKeague also criticized the process by which the agencies came to adopt the new rule.

“Moreover, the rulemaking process by which the distance limitations were adopted is facially suspect,” McKeague wrote. “Petitioners contend the proposed rule that was published, on which interested persons were invited to comment, did not include any proposed distance limitations in its use of terms like ‘adjacent waters’ and ‘significant nexus.’ Consquently, petitioners contend, the final rule cannot be considered a ‘logical outgrowth’ of the rule proposed, as required to satisfy the notice-and-comment requirements of the Administrative Procedures Act. As a further consquence of this defect, petitioners contend, the record compiled by respondents is devoid of specific scientific support for the distance limitations that were included in the final rule. They contend the rule is therefore not the product of reasoned decision-making and is vulnerable to attack as impermissably ‘arbitrary or capricious’ under the A.P.A. In the extant briefing, respondents have not persuasively rebutted either of petitioners’ showings.”

The justices issued a stay pending final resolution of the case in federal court, citing the need to take a more reasoned and deliberate approach to the rulemaking process.

“A stay allows for a more deliberate determination whether this exercise of executive power, enabled by Congress and explicated by the Supreme Court, is proper under the dictates of federal law,” McKeague wrote. “A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new federal rule and whether they will survive legal testing. A stay honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation’s waters.”

Montana’s Sen. Steve Daines, a vocal opponent of the new rule, praised the Sixth Circuit’s decision.

“The Sixth Circuit Court’s nationwide stay on the E.P.A.’s misguided waters of the United States rule is a victory for states’ rights, local governments, farmers, ranchers and landowners,” Daines said in a Friday press release. “This ruling pushes back on the extreme overreach of the Obama administration, which threatened Montana agriculture and natural resources, Montana jobs and Montanans’ property rights. While this is welcome news, it is not the end of the Obama administration’s egregious power grabs. I will continue to vigorously fight to protect Montanans from these overreaching waters of the United States rules and out-of-touch Washington, D.C. regulations.”

Montana’s Attorney General Tim Fox, one of the first to file a challenge to the rule, also applauded the stay.

“In halting implementation of the waters of the United States regulation nationwide, the Sixth Circuit made the right decision today,” Fox said. “Montana and several other states have already been successful in stopping implementation of this new regulation in our own states, and today’s ruling makes it clear the courts recognize the states’ arguments against the regulation have strong legal merit. The waters of the U.S. regulation is a flagrant overreach by the E.P.A. and Corps of Engineers, and Montana will do everything possible to stop it permanently.”