Thursday, October 15, 2015


Last Friday, a federal court ordered the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) to temporarily delay nationwide adoption of the "Waters of the U.S." (WOTUS) rule. The order was in response to challenges brought by 18 states (Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, West Virginia and Wisconsin).
Two of the three 6th Circuit Court of Appeals judges held that the states bringing the challenges "have demonstrated a substantial possibility of success on the merits of their claims" and ordered the rule to be "STAYED, nationwide, pending further order of the court." However, in the coming weeks, the 6th Circuit Court of Appeals must determine whether it has the authority to hear the case.
This comes only after a separate decision on August 27 by the U.S. District Court of North Dakota to delay the rule in 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming). Prior to last week's Court of Appeals ruling, however, the EPA and the Corps were still legally allowed to implement the final rule in the remaining 37 states.

While numerous WOTUS cases have been filed by 31 states and other private parties in separate circuit courts, the U.S. Judicial Panel on Multidistrict Litigation decided that the cases would be merged in the 6th Circuit Court of Appeals because they are similar in nature. However, in a separate development, the same panel denied the Department of Justice's request to consolidate other WOTUS lawsuits filed separately in district court against U.S. EPA and the Corps.

This development only increases the complexity because it remains undetermined whether challenges to the rule will ultimately be heard in circuit or district courts. This will likely lengthen the timeframe of the rule's judicial proceedings.

(from the National Association of Counties) 

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