On October 9, 2015 the Cincinnati-based Court of Appeals for the Sixth Circuit issued a major setback for the Environmental Protection Agency’s (EPA) and the Army Corps of Engineers Clean Water Rule. In a 2-1 ruling the court has put a temporary block on the Act and ruled in favor of the attorney generals of 18 states. This follows a similar ruling issued in late August in a North Dakota federal court which involved 13 states. The 6th Circuit ruled that, “a 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.” This decision is a major blow to the EPA, as it signals another pushback suffered.
The Clean Water Rule’s primary purpose is to extend federal jurisdiction over tens of millions of acres of private land that has been regulated by the states. The rule gives power to the EPA and U.S. Army Corps of Engineers and allows them to micromanage any creek or pound with a “significant nexus” to any kind of “navigable waterway.” The EPA’s rule changes were intended to be a clarification of the Clean Water Act of 1972 definition of “waters of the United States.” This occurred pursuant to a 2014 Supreme Court ruling that allowed the EPA to further define the term. The main problem with the rule as touched upon by the 6th Circuit’s opinion is “the whirlwind of confusion that springs from the uncertainty about the rule’s requirements.” The Court continued saying, “the rulemaking process by which the distance limitations were adopted is facially suspect” and the EPA has not identified “specific scientific support substantiating” their reasonableness. The EPAs distance limitations are as follows, any significant “land within a 100-year floodplain and 1,500 feet of the high water mark or, alternatively, within the 100-year floodplain and 4,000 feet of waters within their claimed jurisdiction.” Further, the Administration’s “argument that ‘bright line tests are a fact of regulatory life’ and that they used ‘their technical expertise to promulgate a practical rule’ is undoubtedly true, but not sufficient.” The EPA’s primary argument that “the nation’s waters will suffer imminent injury if the new scheme is not immediately implemented and enforced” was shot down by the court.
These proposed rule changes by the EPA have created tensions between environmental groups and industry lobbyists. The American Farm Bureau is strongly in opposition of the rule change, due to concerns about increased federal permitting as well as interference in agriculture activities. They initiated a media campaign that was very successful in gathering public support. The campaign said that the EPA and the Engineer Corps were “threatening private property, including drains, ditches and even lands that only contain water when it rains.” After the ruling the National Federation of Independent Business issued a statement saying, “[s]mall businesses everywhere this morning are breathing a sigh of relief.” On the EPA side, however, there was obvious disappointment. Madeleine Foote of the League of Conservation expressed her disappointment stating, “[w]e strongly disagree with this irresponsible decision that lets polluters continue to put the drinking water of one in three Americans at risk.” Attorney Jon Devine of the Natural Resources Defense Council, who is also a participant in EPAs defense team stated the following, “[t]he Clean Water Rule is key to ensuring clean drinking water for one-in-three Americans and protecting essential buffers against flooding.”
Even with the 6th Circuit’s ruling, the Clean Water Rule is not dead. The court still has to determine if it even has jurisdiction to make a ruling. Until then, however, the EPA and the Army Corps cannot regulate waterways that would be affected under the rule. Only in time will we find out the fate of the Clean Water Rule.
Legal Reader, 6th Circuit Issues Major Setback for EPA’s Clean Water Rule, http://www.legalreader.com/6th-circuit-issues-major-setback-for-epas-clean-water-rule/ (last visited October 14, 2015)
The Wall Street Journal, The EPA’s Water Rule Is Plugged, http://www.wsj.com/articles/the-epas-water-rule-is-plugged-1444601505 (last visited October 14, 2015)