Court’s decision hits pause on the Clean Water Rule nationwide

The Southeast’s iconic cypress swamps are one of the many waterways that are more clearly protected under the new federal Clean Water Rule, which is under continued legal and legislative scrutiny. (© Bill Lea)

As litigation concerning the federal Clean Water Rule continues in multiple courts all over the country, one court’s decision to hit pause on the new rule earlier this month has created confusion about the current protections for the nation’s waters. 

On October 9, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide “stay” of the Clean Water Rule, leaving Environmental Protection Agency and the Army Corps of Engineers to resume using the previous guidance in all states while the court determines if it has jurisdiction to decide whether the new rule is lawful.

This latest ruling is the second legal decision against implementation of the Clean Water Rule. The day before the new rule took effect in August, a North Dakota district court delayed the rule from being implemented in 13 states. Despite this setback, EPA moved forward in applying the Clean Water Rule to the rest of the country.

Now the Sixth Circuit, which is based in Cincinnati, must decide whether it has jurisdiction to hear the case. If the court finds that it does not have jurisdiction to review the rule, then litigation over the rule will proceed in district courts around the country, with the states likely seeking stays of the rule on a case-by-case basis (like the one issued by the North Dakota court). But if the court does decide it has authority, the stay will likely remain in place until the validity of the Clean Water Rule is decided, which could take months or even years.

Halting the Clean Water Rule nationwide—even temporarily—is problematic given that years of confusion about which waters were protected under the existing guidance was the catalyst for developing the new rule.

Reverting to the previous guidance, the uncertainty of which left 60 percent of the nation’s stream miles and 20 million acres of wetlands at risk for pollution, means that the drinking water for one in three Americans is at risk once again.  

Many environmental and conservation groups are seeking to support and fortify the rule, while lawsuits challenging the rule have been filed by industry groups and 31 states (including Alabama, Georgia, North Carolina, South Carolina, and Tennessee in SELC’s region).

Two legislative attacks are also moving through Congress. Senator John Barrasso (R-WY) is the sponsor of S. 1140, which would block the rule and set new criteria for waters considered under the Clean Water Rule. Even if Barrasso’s bill doesn’t pass, the Senate is prepared to take up a resolution under the Congressional Review Act, or CRA. The CRA allows legislators to use an expedited process to block new laws with a simple majority of votes. President Obama is expected to veto either attempt, if passed by Congress.

As these legal and legislative proceedings unfold, SELC will continue working to defend and strengthen the Clean Water Rule in order to better protect our streams and wetlands.


Click here for more information about the Clean Water Rule and local and state support for keeping a strong rule in place.

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