The Sixth Circuit Court of Appeals today issued a strongly-worded Order of Stay which has the effect of suspending implementation of the Environmental Protection Agency’s (“EPA”) proposed Waters of the United States (“WOTUS”) rule, which broadly defines the jurisdiction of the EPA under the Clean Water Act beyond any previous interpretation. Although the Sixth Circuit is tentative in its assertion of jurisdiction to actually overturn the rule, it calls the process by which the rule was adopted “facially suspect,” and said that the stay “silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing.” The Court found that the petitioners in the matter, which include several states, had met the test for issuance of such an injunction, namely “a substantial possibility of success on the merits of their claims.”
The proposed WOTUS rule has been widely criticized as extending federal jurisdiction well beyond the traditional definition of “navigable waters” to waters only remotely related to flowing rivers and streams. State and local governments and agricultural interests have been among the leading critics of the new rule.
Dean Mead’s Agribusiness Industry Team will continue to monitor developments in this challenge. If you have questions, please contact Dennis G. Corrick in our Treasure Coast office: DCorrick@deanmead.com
About the Author:
Dennis G. Corrick is a shareholder in the Fort Pierce office of Dean Mead. He has extensive experience working with issues unique to agricultural businesses and properties. He is a member of Dean Mead’s Agribusiness and Real Estate Development Industry teams. He may be reached at (772) 464-7700 or by email at firstname.lastname@example.org.