The Stay Follows A Preliminary Injunction Issued Against the Clean Water Rule in August

In an unexpected move and while still deciding if it has jurisdiction to hear the matter, the Sixth Circuit Court of Appeals today granted a nationwide stay against the enforcement of a regulation issued by the Environmental Protection Agency and the U.S. Army Corps of Engineers on June 29, that clarified the definition of “waters of the United States” subject to federal regulatory jurisdiction under the Clean Water Act (Clean Water Rule). The Sixth Circuit ruling follows a preliminary injunction issued against the Clean Water Rule by a federal district court in North Dakota in August that applied only to the 13 states involved in the lawsuit.

In granting the stay of the Clean Water Rule pending review of petitioners’ claims, the Sixth Circuit raised its concerns that it is “far from clear” that the Rule is harmonious with previous Supreme Court rulings on the permissible parameters of “waters of the United States,” and questioned whether distance limitations set forth in the Clean Water Rule were properly noticed in the rulemaking process and substantiated by adequate scientific support. The Sixth Circuit also focused on the potential burdens implicated by the Rule’s redrawing of jurisdictional lines over the nation’s waters, concluding that a stay “temporarily silences the whirlwind of confusion” about the new Clean Water Rule and whether it will survive legal testing. This is one of many pauses that will occur as there are other challenges pending. There will be additional news in coming months as courts sort through this incredibly complex issue.