The Sixth Circuit is making national headlines today after ordering a nationwide stay that temporarily will block the so-called Waters of the United States (WOTUS) rule finalized back in May by the Environmental Protection Agency and the U.S. Army Corps of Engineers.  See In re EPA and DOD Final Rule; “Clean Water Rule: Definition of Waters of the United States,” 80 Fed. Reg. 37,054 (June 29, 2015), Case Nos. Nos. 15-3799/3822/3853/3887.  The new clean water rule is intended to clarify the definition of “waters of the United States,” as used in the Clean Water Act, 33 U.S.C. § 1251 et seq., to make it more predictable which waterways the EPA and the Corps of Engineers may regulate.  Critics, however, decry the water regulations as a federal “power grab” that fail to satisfy federal notice-and-comment requirements.

Today’s 2-1 ruling by the Sixth Circuit expands on a preliminary injunction issued by a North Dakota district court that stayed operation of the new clean water rule in 13 states.  See North Dakota v. EPA, No. 3:15-cv-59 (D.N.D. Aug. 27, 2015) (PDF).  Indeed, the Sixth Circuit’s decision was influenced by the fact that there already was a stay in over a dozen states.  The panel majority stated that its decision to impose a nationwide stay “temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing.”  The stay will remain in place while the Sixth Circuit considers whether it has subject matter jurisdiction over the matter.

Judge Keith dissented from today’s order, stating that “it is not prudent for a court to act before it determines that it has subject-matter jurisdiction . . . .”  As Judge Keith stated: “If we lack jurisdiction to review the Rule, then we lack jurisdiction to grant a stay.”

We’ll continue to monitor this case to see what the Sixth Circuit does next, and it won’t take long.  As the Court noted in today’s opinion, “[b]riefing on the jurisdictional question will be completed and the question ripe for decision in a matter of weeks.”