The Sixth Circuit today issued an order staying the applicability of the EPA and Army Corps' recently promulgated Clean Water Rule. The stay applies nationwide.
A coalition of private parties, industry groups, and more than 30 states challenged the Rule asserting that it unlawfully expanded the jurisdictional reach of the Clean Water Act. A coalition of state petitioners asked the Court to enter a stay with the Court today concluding that a stay was appropriate because, among other things, there was a likelihood that the petitioners would succeed on the merits.
The Court found that maintaining the status quo which existed prior to the enactment of the Rule would best protect the court's ability to adjudicate the matter and protect the petitioners from enforcement of a Rule that could be overturned. Significantly, the Court found that the petitioners "have demonstrated a substantial possibility of success on the merits of their claims." Specifically, the Court found that the Rule's treatment of tributaries, "adjacent waters," and waters having a "significant nexus" to navigable water is likely to be at odds with the Supreme Court's ruling in Rapanos. Further, the Court found that the specific distance limitations in the final rule were "facially suspect" because the proposed rule did not include any mention of distance limitations at all and thus could not be considered a "logical outgrowth".
The Sixth Circuit specifically noted that the balance of harms favored a stay because of "the burden – potentially visited nationwide on governmental bodies, state and federal, as well as private parties – and the impact to the public in general, implicated by the Rule's effective redrawing of jurisdictional lines over certain of the nation's waters."
The Stay will be in effect until the Sixth Circuit decides which court, either the Sixth Circuit or federal district courts, have jurisdiction to hear the merits of the case. The petitioners contend that jurisdiction is proper in the district courts, where they have filed numerous lawsuits across the country. Should the Sixth Circuit find that it does not have jurisdiction over the case, the stay will likely be dissolved, but it will be persuasive to the district courts considering the issue that the claims made are likely to succeed and that a stay is appropriate.
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