The US Court of Appeals for the Sixth Circuit issued a nationwide stay on October 9, 2015 against the “Waters of the United States” Final Rule. The Final Rule defines the term “waters of the United States” under the Clean Water Act while, as we noted previously, expanding federal jurisdiction over waters that were not previously covered. In a 2-1 decision, the Court explained that its stay will remain effective while the Court decides whether it has jurisdiction to hear the case—a question that it predicts will be ripe for decision in a matter of weeks. The stay applies nationwide because all circuit court challenges have been consolidated in the Sixth Circuit.
The Court held that the state petitioners have demonstrated a substantial “possibility” of success on the merits of their claims. First, the Court explained that “it is far from clear” that the Final Rule’s distance limitations comply with Rapanos, the seminal case addressing permissible federal jurisdiction. These distance limitations extend federal jurisdiction over waters within a specified distance of a water that has been traditionally subject to federal jurisdiction. The state petitioners argue that a definition relying on distance cannot comply with Justice Kennedy’s Rapanos opinion, which permitted federal jurisdiction over only those waters that have a “significant nexus” to a water that has been traditionally subject to federal jurisdiction.
Second, because the distance limitations were introduced in the Final Rule, the Court noted that the rulemaking process by which the distance limitations were adopted is “facially suspect.” The state petitioners have argued that distance limitations cannot be considered a “logical outgrowth” of the proposed rule, as required by the Administrative Procedures Act, when the limitations were not present in the proposed rule.
While the Court considers the jurisdictional question, the stay “temporarily silences the whirlwind of confusion” that has built up in light of disparate district court rulings: a North Dakota court issued a preliminary injunction blocking application of the Final Rule in 13 states while courts in West Virginia and Georgia have held that district courts lack jurisdiction to hear challenges to the Final Rule. Although the stay may only remain effective for a short period, it will “restore uniformity of regulation under the familiar, if imperfect, pre-Rule regime….”