On October 9, 2015 the Cincinnati-based Court of Appeals for the Sixth Circuit issued a major setback for the Environmental Protection Agency\u2019s (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, \u201ca 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.\u201d This decision is a major blow to the EPA, as it signals another pushback suffered.<\/p>\n
The Clean Water Rule\u2019s 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 \u201csignificant nexus\u201d to any kind of \u201cnavigable waterway.\u201d The EPA\u2019s rule changes were intended to be a clarification of the Clean Water Act of 1972 definition of \u201cwaters of the United States.\u201d 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\u2019s opinion is \u201cthe whirlwind of confusion that springs from the uncertainty about the rule\u2019s requirements.\u201d The Court continued saying, \u201cthe rulemaking process by which the distance limitations were adopted is facially suspect\u201d and the EPA has not identified \u201cspecific scientific support substantiating\u201d their reasonableness. The EPAs distance limitations are as follows, any significant \u201cland 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.\u201d Further, the Administration\u2019s \u201cargument that \u2018bright line tests are a fact of regulatory life\u2019 and that they used \u2018their technical expertise to promulgate a practical rule\u2019 is undoubtedly true, but not sufficient.\u201d The EPA\u2019s primary argument that \u201cthe nation\u2019s waters will suffer imminent injury if the new scheme is not immediately implemented and enforced\u201d was shot down by the court.<\/p>\n
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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 \u201cthreatening private property, including drains, ditches and even lands that only contain water when it rains.\u201d After the ruling the National Federation of Independent Business issued a statement saying, \u201c[s]mall businesses everywhere this morning are breathing a sigh of relief.\u201d On the EPA side, however, there was obvious disappointment. Madeleine Foote of the League of Conservation expressed her disappointment stating, \u201c[w]e strongly disagree with this irresponsible decision that lets polluters continue to put the drinking water of one in three Americans at risk.\u201d Attorney Jon Devine of the Natural Resources Defense Council, who is also a participant in EPAs defense team stated the following, \u201c[t]he Clean Water Rule is key to ensuring clean drinking water for one-in-three Americans and protecting essential buffers against flooding.\u201d<\/p>\n
Even with the 6th Circuit\u2019s 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.<\/p>\n
Legal Reader, 6th<\/sup> Circuit Issues Major Setback for EPA\u2019s Clean Water Rule, <\/em>http:\/\/www.legalreader.com\/6th-circuit-issues-major-setback-for-epas-clean-water-rule\/ <\/a>(last visited October 14, 2015)<\/p>\n The Wall Street Journal, The EPA\u2019s Water Rule Is Plugged<\/em>, http:\/\/www.wsj.com\/articles\/the-epas-water-rule-is-plugged-1444601505<\/a> (last visited October 14, 2015)<\/p>\n","protected":false},"excerpt":{"rendered":" On October 9, 2015 the Cincinnati-based Court of Appeals for the Sixth Circuit issued a major setback for the Environmental Protection Agency\u2019s (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 [\u2026] <\/p>\n