Blocked “Waters of The U.S.” Rule: A Good Decision

The U.S. Sixth Circuit Court of Appeals handed a partial victory to Ohio landowners on Friday by siding with opponents of President Obama’s so-called “Clean Water Rule.” The court granted a stay on expanding federal jurisdiction under the Clean Water Act, to include virtually any land that has or may one day appear wet. Over 30 states joined in opposing the U.S. EPA and US Army Corps of Engineers (the Agencies) new definition of “Waters of the United States” (WOTUS) and welcome Friday’s decision to delay its implementation.

According to the Clean Water Act, the Agencies are charged with protecting “navigable waters” commonly defined as “waters of the U.S.” This authority reflects the intent of the Interstate Commerce Clause accurately. Over the last 30 years, a series of Supreme Court decisions have confused the meaning of “navigable waters.” Most recently was Rapanos v. United States, decided in 2006. The Agencies charged Mr. Rapanos with violating the Clean Water Act for filling in a wetland on his property with dirt. His property was more than 20 miles away from the nearest “navigable water” which the court determined was beyond federal jurisdiction. Since the Rapanos decision, uncertainty still lingers about federal enforcement of the Clean Water Act.

The Clean Water Rule threatens the relationship between federal and state environmental protection goals. Fortunately, the decision to stay the rule preserves this balance and gives many states hope. According to the majority opinion, the court believes states will have a “substantial possibility of success” in their challenge of the final rule entirely.

Two main factors guided the Court’s decision. First, the final rule conflicts with the Rapanos v. U.S. ruling that said a wetland on private property 20 miles away from “navigable waters” was not under federal jurisdiction. Second, the final rule includes a 4000-foot barrier beyond any small tributaries or wetlands as also being deemed “waters of the U.S.” within federal reach. According to the Administrative Procedures Act, and confirmed by the sixth circuit decision, such a significant revision to the final rule is ill-advised and suspect, at best.

The Ohio Chamber has actively opposed the Clean Water Rule’s new definition of “water of the U.S.” to prevent Ohio businesses and landowners from the burden of obtaining federal permits for every soggy piece of property they own. Fortunately, the concerns of our 8,000 members have the strong support of Ohio Attorney General DeWine, Ohio EPA Dir. Butler and environmental protection agencies from over 30 states.

The stay provides more time for legal challenges to proceed without distributing state and industry resources for immediate implementation. Hearings on the legality of the Clean Water Rule are expected to resume in the next few weeks.