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Court orders stay on EPA WOTUS rule Rule defining water of the United States raises controversial issues regarding federal jurisdiction over water bodies and wetlands ALAN BAILEY Petroleum News
On Oct. 9 the U.S. Court of Appeals for the 6th Circuit ordered a nationwide stay on the Environmental Protection Agency’s new rule defining the scope of the waters of the United States. The court order came in response to appeals by multiple states against the rule, which is commonly referred to as the WOTUS rule. EPA issued the rule on May 27, with the rule going into effect on Aug. 28.
In September the federal District Court in North Dakota granted a preliminary injunction against the rule in Alaska and 12 other states, following an appeal by those states against the rule. The new 6th Circuit order applies throughout the country.
Federal jurisdiction The rule defines the scope of what the federal administration views as U.S. waters, subject to federal jurisdiction and federal permitting. The rule is controversial because it raises issues regarding the extent of federal jurisdiction within states and the relative rights of federal and state authorities to manage lands within the borders of the United States. The situation is particularly touchy in Alaska because of the state’s myriad rivers, streams, lakes and wetlands.
Federal jurisdiction over waterways is simple in principle in that most people agree that the federal government can regulate navigable waters that are capable of supporting interstate commerce. However, complications arise because these obvious waters of the United States can become polluted by materials discharged into other connecting waterways or wetlands.
So where do the waters of the U.S. end and local or state waters begin? Under the EPA rule, tributaries to the more obvious U.S. water bodies, as well as wetlands adjacent to these tributaries and navigable waters impounded behind dams are all subject to federal jurisdiction.
Possibility of success In its Oct. 9 order a majority of a panel of three 6th Circuit judges said that those appealing the new rule had “demonstrated a substantial possibility of success on the merits of their claims.” And, while the petitioners have not shown the likelihood of immediate and irreparable harm from the rule, nor is there any indication that a stay of the rule will result in imminent injury to the nation’s waters, the majority said. The majority said that its greater concern is the potential burden that the rule places on state and government bodies and on private parties.
Given the uncertainty that has over the years clouded the definitions of “navigable waters” and “waters of the United States” there is a need for a new rule, the majority said. But the “breadth of the ripple effects” caused by the definitions provided in the new rule “counsels strongly” for a pause, to determine whether the rule represents a proper exercise of federal executive power, it said.
One judge in the 6th Circuit panel dissented from the majority opinion, saying that the court must complete a review of whether the Court of Appeals or federal District Court has jurisdiction over the WOTUS rule before taking action.
Praise from senators Sen. Dan Sullivan, R-Alaska, who has been vociferous in his opposition to the WOTUS rule, praised the court decision.
“I’m grateful that the court has halted this over-reaching jurisdictional expansion,” Sullivan said. “This rule is a prime example of this administration’s persistent disregard for the rule of law and yet another attempt to bypass Congress and the American people by granting the EPA vast new authority over lands across the country, particularly in Alaska, which is home to 60 percent of the nation’s jurisdictional waters.”
“Today’s decision to put a national hold on the controversial WOTUS rule is further good news for opponents of the EPA’s culture of overreach,” said Sen. Lisa Murkowski, R-Alaska. “I’ve been fighting to reign in the EPA and the harmful impacts the WOTUS rule could have on almost every corner of Alaska. I will continue my efforts to do my part to ensure this rule is never imposed on the state.”
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