Court Issues Nationwide Stay against “Waters of the US” Rule

Big news for the states legally challenging the ongoing EPA “Regulatory Train Wreck.” Earlier today, the Cincinnati-based Court of Appeals for the Sixth Circuit issued a nationwide stay against EPA and the Army Corps of Engineers’ recently finalized rule redefining “Waters of the United States” and vastly expanding the government’s regulatory authority over the nation’s water resources.

This comes a little over a month after a federal district court in North Dakota granted a preliminary injunction against EPA and the Corps from enforcing the rule in the 13 states that jointly filed a lawsuit against the two agencies (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming). Today’s split 2-1 decision effectively prevents EPA from enforcing the regulation in the remaining 37 states while the legality of the rule is sorted out.

The move to redefine “Waters of the United States” comes after the Supreme Court twice checked the agencies’ overly broad interpretation of the Clean Water Act in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001) and Rapanos v. United States (2006). The two agencies, however, only doubled down on their broad interpretation by finalizing a rule to grant them even greater regulatory authority over smaller waterways and wetlands, perhaps including even drainage ditches, ephemeral streams and backyard ponds.

News of a stay is significant because, as the Court writes, “petitioners [the states] have demonstrated a substantial possibility of success on the merits of their claims.”