Monday, February 22, 2016

WOTUS Breaking News: 6th Circuit to Hear Rule Challenge, Stay Likely to Remain in Effect

Big news today in the environmental world: the 6th Circuit has said it will hear challenges to a new rule developed by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers, known as WOTUS ("Waters of the United States"). This mean that the nationwide stay that the 6th Circuit issued last year is likely to remain in place until it comes to a final decision on the merits of the 20-odd lawsuits filed against the rule.

Readers of this blog have seen several posts on this topic in recent months because of its importance to landowners in Florida. As I wrote last month,
On August 28, 2015, a new rule promulgated by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers took effect in Florida. The rule, called WOTUS, seeks to clarify the definition of “waters of the United States,” which is critical to those agencies’ regulatory reach under the Clean Water Act (CWA). The CWA prohibits the discharge of pollutants into waters of the United States without a permit. Violators are subject to penalties of thousands of dollars per day (even if unintentional) or costly lawsuits by neighbors or environmentalists.
Many of the waters subject to federal jurisdiction are easy to identify: navigable water bodies, rivers, streams, creeks, impoundments of those waters, and wetlands directly adjoining any of those waters. Beyond those, though, what qualifies has been unclear for decades. A series of U.S. Supreme Court cases created confusion because the justices could not agree on just how far federal agencies could reach. This meant that, for many small waters and wetlands, the Corps had to perform a site-specific jurisdictional determination. While burdensome to the agencies, this analysis at least forced them to use science to determine whether more-isolated waters and wetlands had a “significant nexus” with a water that was subject to federal jurisdiction.
Now, the federal agencies have adopted WOTUS, a rule that will mean fewer case-by-case analyses. While this may make the process more “efficient” for the agencies, that comes at the expense of more areas automatically being deemed as falling under federal jurisdiction simply because the agency says so, rather than because of any scientific connection to another water.
Many groups filed suit last year, and after one federal district (trial) court in North Dakota issued a stay limited to the states involved in that case, the 6th Circuit issued a nationwide stay on the application of WOTUS. Then, the fight became about whether federal district courts or circuit courts should hear the substance of the parties' challenges to WOTUS. In the meantime, the 11th Circuit, which has jurisdiction over Florida's challenge, cancelled oral arguments on its case, saying it would reschedule once the 6th Circuit had made a decision.

Today, the 6th Circuit did just that, ruling that it had jurisdiction over the challenges, and not district courts. Although it is not yet entirely clear, the decision most likely means that the nationwide stay on any application of WOTUS will remain in place. Landowners should be pleased with the direction of this litigation so far.