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WOTUS Part 6: Sixth Circuit Issues a Potentially Permanent Stay Preventing Implementation
October 09, 2015

By Peter D. Mohr

As recently discussed on this blog, last week, the United States Court of Appeals for the Sixth Circuit heard petitioners’ and respondents’ arguments from the four separate actions contesting implementation of the WOTUS rule.  Collectively, petitioners represent a total of 18 states.  In addition to the respondents, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency, there are respondent-interveners consisting of environmental conservation groups and several states including, but not limited to, Oregon and Washington.

This morning, the Sixth Circuit granted petitioners’ motion for a stay preventing further implementation of the Rule.  The court found that petitioners had demonstrated a substantial possibility of success on the merits of two claims: (1) 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,” and (2) that “the rulemaking process by which the distance limitations were adopted is facially suspect” under the federal Administrative Procedures Act.  Further, the court showed great concern for “the burden – potentially visited nationwide on governmental bodies, state and federal, as well as private parties – and the impact on the public in general, implicated by the Rule’s effective redrawing of jurisdictional lines over certain of the nation’s waters[,]” and that “the sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the [prior version of the rule] for the time being.”

Finally, while the stay may assume the legal effect of a preliminary injunction, to be clear, the court’s order does not necessarily assume the weight of a preliminary injunction.  While a preliminary injunction would remain in effect for the duration until such time that the court entered a final ruling on the merits of petitioners’ claims, this particular stay may possess a much more abbreviated shelf life.  This is because, while the Sixth Circuit may have granted petitioners’ request for a stay, it did so pending the court’s future determination of whether it even possesses jurisdiction to hear the arguments before it.  Should the Sixth Circuit determine it does not possess jurisdiction to hear these cases, it would appear the stay dissolves and it’s back to the drawing board for petitioners in federal district court.


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