Nationwide Stay Remains in Effect
This week, the U.S. Court of Appeals for the Sixth Circuit decided that the federal appellate court and not the district courts should resolve the pending legal disputes over the new “Waters of the U.S.” (WOTUS) rule. Importantly, for now, the nationwide stay of the rule remains in effect. The U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) are using the prior regulatory definition of WOTUS and applicable guidance (status quo as it existed before the new rule) in making jurisdictional determinations or taking other actions based on the definition of WOTUS.
The Sixth Circuit’s decision has generated a tremendous amount of chatter. Here are the immediate take-aways for AGC members:
- The Sixth Circuit’s stay (issued last year) of the 2015 WOTUS rule will continue in effect. If the court had determined that it did not have legal authority to hear and decide the legal challenges, the stay would have automatically ended.
- There is a case underway in the Eleventh Circuit wherein the court could reach a contrary decision that litigation over the WOTUS rule should be heard at the district court level. A conflicting decision from the Eleventh Circuit could tee up the “venue” matter (i.e., whether the WOTUS legal challenges should be heard in federal district or appeals courts) for Supreme Court review.
- It will probably be quite some time until the case in the Sixth Circuit advances to the point where the court will address the merits of the claims that the WOTUS rule is unlawful. At that point, the issue of the nationwide stay may be revisited.
- For the foreseeable future, the agencies are using the regulations codified in 1986 [33 C.F.R. §328.3 (Corps); 40 C.F.R. §122.2 (EPA)] and the 2008 Rapanos Guidance to make jurisdictional determinations or take other actions based on the definition of WOTUS.
- It is unclear whether district courts outside of the Sixth Circuit states (of KY, MI, OH and TN) have to abide by fractured (1-1-1) opinion that appellate court is the proper venue to hear challenges to the 2015 WOTUS rule. Lawsuits have been filed in at least 12-13 district courts outside the Sixth Circuit – and those cases may (or may not ) proceed on a parallel track. Perhaps the most prominent of those is the ongoing challenge brought in federal district court in North Dakota by that state and twelve others. The court in that case issued a preliminary injunction against the rule last August.
AGC will closely monitor and report on WOTUS developments as they happen on its Environmental Web Page at www.agc.org/environment. If you need additional information, please contact AGC’s Leah Pilconis at pilconisl@agc.org.