This morning the United States Sixth Circuit Court of Appeals granted a nationwide stay of the Environmental Protection Agency’s “Waters of the United States” rule which redefined the scope of waters protected by the Clean Water Act.
The “Waters of the U.S.” rule was implemented Aug. 28 and has been a source of controversy, with a handful of states filing suit to block it. The rule defines which streams, rivers, lakes and marshes can be regulated by the EPA and critics say it places a burden on farmers, allowing bureaucrats to penalize and harass landowners who work near ponds without federal authority.
The rule protects tributaries showing physical signs of running water even if they don’t flow year round. It also allows the EPA to regulate any body of water within 1,500 feet of another body of water already covered by the rule.
In today’s ruling Judge McKeague, joined by Judge Griffin, wrote that petitioners demonstrated a sustainable possibility of success on the merits of their claims.
According to the order, “…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.” McKeague wrote that the rule’s definitions of “navigable waters” and “waters of the United States” are clouded by uncertainty.
“What is of greater concern to us, in balancing the harms, is the burden — potentially visited nationwide on governmental bodies, state and federal, as well as private parties — and the impact on the public in general, implicated by the Rule’s effective redrawing of jurisdictional lines over certain of the nation’s waters,” the order reads.
Alabama Attorney General Luther Strange joined 17 other states in pursuing a nationwide stay from the U.S. Sixth Circuit Court of Appeals on Sept. 9. These states include Alabama, Georgia, Florida, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, West Virginia and Wisconsin.
The rule had already been stayed in 13 other states, and McKeague wrote the stay will “restore uniformity of regulation under the familiar, if imperfect, pre-Rule regime, pending judicial review.”
Strange welcomed the ruling. In a statement released to the press on Friday morning, Strange said the WOTUS rule was “unprecedented.”
“Alabama and the rest of the country are now given protection from the controversial new rule while it is being fought by our coalition of states in federal court,” Strange said. “The WOTUS rule is an unprecedented power grab by the EPA that practically extends to every landowner’s property and is so far-reaching and overly broad that even the U.S. Army Corps of Engineers has expressed serious concerns about its ability to be enforced.”
In dissent, Judge Keith wrote he believed there was a question whether the circuit court had jurisdiction under the Clean Water Act to review the rule.
“One of the issues in this case is whether this court has exclusive jurisdiction to review the Rule in the first instance,” Keith wrote. “We can enjoin implementation of the Rule if we determine that we have jurisdiction. But until that question is answered, our subject-matter jurisdiction is in doubt, and I do not believe we should stay implementation of the Clean Water Rule.”
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