Jessica Karmasek Oct. 9, 2015, 1:38pm


CINCINNATI, Ohio (Legal Newsline) - The U.S. Court of Appeals for the Sixth Circuit has granted a motion that effectively blocks the U.S. Army Corps of Engineers and Environmental Protection Agency from enforcing a new rule that extends the federal agency’s authority to all bodies of water.

The rule -- known generally as the “Waters of the United States” rule -- was published in the Federal Register June 29. The EPA and the U.S. Army Corps of Engineers began enforcement Aug. 28.

Under the rule, the EPA’s authority extends to almost all bodies of water, no matter the size or frequency.

On Friday, two out of three Sixth Circuit judges sided with the petitioners -- Ohio, Michigan, Tennessee, Oklahoma, Texas, Louisiana, Mississippi, Georgia, West Virginia, Alabama, Florida, Indiana, Kansas, Kentucky, South Carolina, Utah, Wisconsin and the North Carolina Department of Environment and Natural Resources -- saying they demonstrated “a substantial possibility of success on the merits of their claims.”

“Petitioners first claim that the Rule’s treatment of tributaries, ‘adjacent waters,’ and waters having a ‘significant nexus’ to navigable waters is at odds with the Supreme Court’s ruling in Rapanos, where the Court vacated the Sixth Circuit’s upholding of wetlands regulation by the Army Corps of Engineers,” the panel wrote in a six-page decision. “Even assuming, for present purposes, as the parties do, that Justice Kennedy’s opinion in Rapanos represents the best instruction on the permissible parameters of ‘waters of the United States’ as used in the Clean Water Act, it is far from clear that the new Rule’s distance limitations are harmonious with the instruction.

“Moreover, the rulemaking process by which the distance limitations were adopted is facially suspect.”

West Virginia Attorney General Patrick Morrisey, who led the charge, hailed the Sixth Circuit’s ruling as a “critical victory” in the fight against federal overreach.

“We have said from the beginning that this new rule does not pass legal muster, and had it been allowed to remain in effect, homeowners, farmers and a host of other entities across our state would have found themselves subject to a costly regime of new, complicated federal regulations,” Morrisey explained.

“The Sixth Circuit’s decision today saves these individuals and businesses from this hefty burden.”

Morrisey said the court’s granting of the stay reaffirms the states’ belief that they have a strong case on the merits and that the courts ultimately will strike down the “burdensome” regulation.

“We look forward to continuing to challenge this rule’s legality in court and are confident we will prevail,” he said.

The rule extends the EPA and Corps of Engineers’ regulatory jurisdiction to an untold number of small bodies of water, including roadside ditches and short-lived streams or any other area where the agencies believe water may flow once every 100 years.

Thirty-one states and state agencies have challenged the legality of the regulation, arguing it violates the Clean Water Act, the Administrative Procedure Act and the U.S. Constitution. They argue it also usurps their primary responsibility of management, protection and care of intrastate waters and lands. That coalition includes West Virginia, Alabama, Alaska, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Wisconsin, Wyoming, the North Carolina Department of Environment and Natural Resources, the New Mexico Environmental Engineer and the New Mexico State Engineer.

U.S. Rep. Alex Mooney, R-W.Va., applauded Morrisey’s efforts in preventing the “devastating” regulation from going into effect.

“This is a major win for farmers, businesses, and families in West Virginia,” Mooney said. “The Environmental Protection Agency’s harmful WOTUS rule is detrimental to our communities in West Virginia and across the country.”

West Virginia Republican Party Chairman Conrad Lucas also credited Morrisey.

“Thanks to a conservative attorney general with the courage to take on D.C. and Obama, we have a fighting chance to save our energy industries, farms and private property rights,” Lucas said.

“Every day Patrick Morrisey works to protect us from an out-of-control Federal bureaucracy. West Virginia is lucky to have such a committed and effective conservative leader in Patrick Morrisey.”

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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