On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay on the implementation of the U.S. Environmental Protection Agency’s (EPA) “Waters of the United States” rule that became final earlier this year—at least in all parts of the country other than 13 western states where its implementation had been stayed by the U.S. District Court for the District of North Dakota (see our earlier Alert.)
The Sixth Circuit’s stay order is unusual because it was issued before the court had decided the threshold issue of its own jurisdiction. It is also notable that the court, apparently so wanting to “preserve the status quo,” granted injunctive relief based on finding only a “possibility” of success on the merits, and despite explicitly acknowledging that the petitioners had not shown that they would suffer irreparable harm absent a stay.
As for the merits, the Sixth Circuit noted that “it is far from clear that the new Rule’s distance limitations (e.g., its definition of “neighboring waters” to mean waters located within 100 feet of the ordinary high water mark) are harmonious with Justice Kennedy’s instructions in Rapanos, and it added that EPA had failed to explain how the public had been given reasonably specific notice that the distance-based limitations adopted in the rule were among the range of alternatives being considered. Stay tuned for new developments.