Clean Water Rule Challenges to be heard by Sixth Circuit

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U.S. Sixth Circuit Court of Appeals

Clean Water Rule Challenges to be heard by Sixth Circuit

Recently we reported on the stay issued by the Sixth Circuit Court of Appeals to the Clean Water Rule.  The Clean Water Rule was challenged by a number of plaintiffs in various federal district courts and circuit courts around the country.  The plaintiffs filed petitions in both the district and circuit courts based upon what they allege is uncertainty about whether the adoption of the Clean Water Rule is within those actions that must be challenged in a U.S. Circuit Court of Appeals.  After issuing a stay of the Clean Water Rule, the Sixth Circuit Court of Appeals ruled in late February that it would hear challenges to the Rule.

The Clean Water Rule and its Challengers

In June 2015, the Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“USACE”) proposed the Clean Water Rule, which redefined what bodies of water qualify as “waters of the United States” under the Clean Water Act (“CWA”).  The Clean Water Rule’s detractors say the Rule improperly gives the EPA and USACE broad new authority under the CWA, and that federal district courts should first hear the case, not the Sixth Circuit.

A central question before the Sixth Circuit has been whether the federal government was correct in asserting that the Clean Water Rule is an “other limitation,” meaning a limitation on the way the EPA regulates certain pollutant discharges, under section 509(b)(1)(E) of the CWA.

Sixth Circuit Holds it has Jurisdiction Over Challenges to Clean Water Rule

In a close 2-1 panel decision, the Sixth Circuit stated that it had jurisdiction to hear the case.  This is true despite the fact that Sixth Circuit Judges Richard Griffin and Damon J. Keith actually found the Clean Water Rule does not fit into that provision’s parameters, saying they would not review the case on that basis.  Even still, Judge Griffin agreed with Judge David W. McKeague that Section 509(b)(1)(F) of the act, which addresses the issuance or denial of permits, grants the Sixth Circuit jurisdiction.

The groups opposing the Sixth Circuit’s review said that section (F) did not justify jurisdiction in the Sixth Circuit because the Clean Water Rule is not an “action” of the EPA administrator “in issuing a permit.”  Judge McKeague disagreed, siding instead with the EPA’s argument that the effect of the Clean Water Rule is to impact permitting requirements, thereby affecting the granting and denying of permits, which the judge said is enough to bring the Clean Water Rule under subsection (F).

Sixth Circuit Relied on National Cotton Decision in Concluding it has Jurisdiction

Judge McKeague and Judge Griffin relied on the Sixth Circuit’s 2009 ruling in National Cotton Council v. EPA in coming to their conclusion.  In National Cotton, numerous groups challenged a rule that exempted from the CWA’s permitting requirements pesticides applied in accordance with federal law.  The environmental groups that challenged the rule argued that jurisdiction lied in federal court, where the groups had filed an action in the Northern District of California.  The Sixth Circuit disagreed, denying the groups’ motion to dismiss.

In denying the motion, the Sixth Circuit concluded that the rule at issue satisfied subsection 509(b)(1)(F).  In relying on two decisions from the Ninth Circuit, the Sixth Circuit found that a rule falls within the purview of subsection (F) if it regulates the underlying permitting procedures, even if it does not amount to the actual denial of the permit.

In his opinion Judge McKeague said, “The National Cotton court noted that this more expansive reading of subsection (F) encompassed even regulations that exempted certain discharges from permitting requirements.”  Judge Griffin said he disagreed with the National Cotton decision, but was nonetheless bound by it.  Judge Keith disagreed that the National Cotton case gave the Sixth Circuit jurisdiction to hear challenges to the Clean Water Rule.

Sixth Circuit’s Jurisdictional Ruling Comes on Heels of Previous Stay of the Clean Water Rule

As noted the Sixth Circuit’s decision regarding its jurisdiction to hear challenges to the Clean Water Rule was preceded by a stay of the Rule.  There, the Sixth Circuit said the petitioners who opposed the Rule had demonstrated “a substantial possibility of success” on the merits of their claims.  The stay order says the rule is stayed “pending further order of the court,” so it appears the stay will remain in effect even after the court’s jurisdictional ruling, which didn’t make any statement that it would be lifted.

The Sixth Circuit’s jurisdictional decision keeps the EPA from having to litigate approximately 20 different cases in federal district court, no doubt a big relief for the EPA.  This is true because the U.S. Panel on Multidistrict Litigation denied the EPA’s request to have the cases centralized in one court on the grounds that the disputes are based on administrative record and require very little discovery.

Similar Case in the Eleventh Circuit Waited to Hear What Sixth Circuit had to Say

While the Sixth Circuit has determined that it has jurisdiction over challenges to the Clean Water Rule, there is another similar case pending in the Eleventh Circuit in which Florida and 10 other states, including Utah, are seeking to overturn a Georgia district judge’s finding that an appeals court is the proper venue for their challenge to the Clean Water Rule.  In Georgia v. McCarthy, the states argued that federal district courts are the proper place to challenge the Clean Water Rule.  The Eleventh Circuit postponed oral arguments in the case pending a ruling from the Sixth Circuit.

Since the Sixth Circuit has ruled that they had jurisdiction, it is likely the Eleventh Circuit will rule it has jurisdiction as well.  However, this does not mean the end for the battle over the Clean Water Rule.  In fact, it would appear that the fight is just beginning.  Yet, if the Sixth Circuit’s hint in issuing its stay is correct, namely that the petitioners had shown a possibility of success on the merits, then the Clean Water Rule may be in jeopardy.

Contact C/J’s Water Law Team Today

We will continue to follow this case, and will provide any updates as they become available.  If you or someone you know may be impacted by the Clean Water Rule, its stay, any future litigation, or if you have other water law related issues, please contact our water law team for a consultation.

* Photo Cred.: the newcivilrightsmovement.com


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2016 EPA Water Law

EPA issues final Clean Water Rule, but Sixth Circuit stays rule pending further determination

EPA Water Rule 2016In the spring of 2015, the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“USACE”) released the final Clean Water Rule in order “to clearly protect from pollution and degredation the streams and wetlands that form the foundation of the nation’s water resources.”  According to the EPA’s news release:

The rule ensures that waters protected under the Clean Water Act are more precisely defined and predictably determined, making permitting less costly, easier, and faster for businesses and industry. The rule is grounded in law and the latest science, and is shaped by public input. The rule does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions.

Up and until the EPA and the USACE acted to pass the final Clean Water Rule, “[p]rotection for many of the nation’s streams and wetlands [had] been confusing, complex, and time consuming as the result of Supreme Court decisions in 2001 and 2006.”  Accordingly, the EPA and USACE took action to release the final Clean Water Rule “to provide clarity on protections under the Clean Water Act after receiving requests for over a decade from members of Congress, state and local officials, industry, agriculture, environmental groups, scientists, and the public for a rulemaking.”

At the outset, it is very important to understand what the new Clean Water Rule does and does not do.  First, the rule clearly defines and protects tributaries that impact the health of downstream waters.  “The rule says that a tributary must show physical features of flowing water – a bed, bank, and ordinary high water mark – to warrant protection,” and “[t]he rule provides protection for headwaters that have these features and science shows can have a significant connection to downstream waters.”

Second, the rule provides certainty in how far safeguards extend to nearby waters.  “The rule protects waters that are next to rivers and lakes and their tributaries because science shows that they impact downstream waters,” and “[t]he rule sets boundaries on covering nearby waters for the first time that are physical and measurable.”

Third, the rule provides protection for the nation’s regional water treasures.  Specifically, “[t]he rule protects prairie potholes, Carolian and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.”

Fourth, the rule focuses on streams, not ditches.  “The rule limits protection to ditches that are constructed out of streams or function like streams an can carry pollution downstream.”  Thus, ditches that are not constructed in streams and only flow after a rainstorm are not protected under the rule.

Fifth, the rule maintains the status of waters within Municipal Separate Storm Sewer Systems and encourages the use of green infrastructure.  Finally, the rule reduces the use of case specific analysis of waters.  Before the release of the new rule, “almost any water could be put through a lengthy case-specific, even if it would not be subject to the Clean Water Act.”  Now, “[t]he rule significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features.”

In terms of what the Clean Water Rule does not do, the EPA and the U.S. Army corps of Engineers has said the rule does not: 1) protect any types of waters that have not historically been covered by the Clean Water Act; 2) add any new requirements for agriculture; 3) interfere with or change private property rights; 4) regulate most ditches; 5) change policy on irrigation or water transfers; 6) address land use; 7) cover erosional features such as gullies, rills and non-wetland swales; and 8) include groundwater, shallow subsurface flow and tile drains.

As it relates specifically to agriculture, “[t]he final rules recognizes the vital role that U.S. agriculture serves in providing food, fuel, and fiber at home and around the world.”  As a result, “[a]ctivites like planting, harvesting, and moving livestock have long been exempt from Clean Water Act regulation, and the Clean Water Rule doesn’t change that.”  Instead, “[t]he Clean Water Rules provides greater clarity and certainty to farmer and does not add economic burden on agriculture.”

Following the release of the Clean Water Rule, the EPA Administrator Gina McCArthy and the Army (Civil Works) issued a joint memorandum to their respective staffs instructing the agencies to work together to improve implementation of the national Clean Water Act section 404 program.  The joint memorandum was issued to help “improve transparency, strengthen the coordination processes between the agencies, increase public participation, promote the use of the best available science and technical data for making case-specific significant nexus determinations, and promote public health and environmental protection for all Americans who depend on reliable and abundant sources of clean water.”

However, in October 2015, the Sixth Circuit Court of Appeals issued a stay of the Clean Water Rule nationwide, until federal courts could review the rule.  Eighteen states have challenged the validity of the Clean Water Rule.  These states contend that the rule expands the agencies’ regulatory jurisdiction and alters the balance of federal/state collaboration.  Furthermore, the states argue that the rule, which seeks to define “significant nexus to navigable waters,” is inconsistent with the law as defined by the United States Supreme Court. In response, the EPA contends that the states did not make a requisite showing to justify a stay.

The Sixth Circuit ultimately concluded that the states had demonstrated a substantial possibility of success on the merits of their claims.  The states took issue with the way the rule was promulgated administratively.  Initially, the proposed Clean Water Rule did not include distance limitations in its treatment of “adjacent waters,” and waters having a “significant nexus,” as was provided in the final rule.  Therefore, the proposed Clean Water Rule was not a logical outgrowth of the final rule, as required by 5 U.S.C. §553.  Second, the Sixth Circuit concluded that the irreparable harm factor was not determinative for each side.  Neither the states would be harmed by the rules continued application, nor was there any indication that the nation’s waters would be harmed without it.  Finally, and more importantly, the Sixth Circuit noted the nationwide burden on private parties and government bodies—state and federal—implicated by the Clean Water Rule’s effective redrawing of jurisdictional lines.

Then, in January 2016, President Obama vetoed Joint Resolution 22, a congressional resolution that would have overturned the EPA’s Clean Water Rule.  Thus, for now, the Sixth Circuit’s stay remains in force pending a determination regarding the Sixth Circuit’s jurisdiction over challenges to the rule.   Currently, the U.S. Supreme Court in, United States Army Corps of Engineers v. Hawkes Co., Inc., is set to determine whether the United States Army Corps of Engineers’ determination that the property at issue contains “waters of the United States” protected by the Clean Water Act, constitutes “final agency action for which there is no other adequate remedy in a court,” and is therefore subject to judicial review under the Administrative Procedure Act.