Federal Appeals Court Suspends Rule on Waters of U.S. Nationwide

Last Friday, the federal Court of Appeals for the 6th Circuit by a vote of 2-1, at the request of 18 states, granted a stay of the controversial regulation which aims to clarify and expand the Environmental Protection Agency’s (EPA) and U.S. Army Corps of Engineers’ (Corps) jurisdiction over U.S. waterways, a rule commonly known as "Waters of the US" or WOTUS. The court’s ruling, which suspends enforcement of the rule in all 50 states, is in response to disparate court rulings on the same issue in different states and jurisdictions. According to the court, a stay was necessary to maintain consistency with the application of the Clean Water Act while the rule continues to be litigated. This latest court ruling comes on the heels of an August 2015 ruling in which a federal district court in North Dakota granted an injunction requested by 13 states to halt WOTUS. That ruling however only applied to those 13 states.

The majority opinion stated, "A stay allows for a more deliberate determination whether this exercise of Executive power, enabled by Congress and explicated by the Supreme Court, is proper under the dictates of federal law. A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing. A stay honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation’s waters."

NRMCA submitted comments back in April 2014 on the then proposal stating that NRMCA remains "...concerned that the proposed rulemaking as currently written will further confuse and add additional legal and regulatory uncertainty to the ready mixed concrete industry and other businesses and regulated entities. Simply put, the proposed rule is too broad, imprecise, and leaves too much up to agency and third party interpretation to provide the regulated community with the certainty the agencies are seeking to give them." NRMCA continued to request that "...the agencies withdraw the rule and work with their state and local co-regulators, and stakeholders like NRMCA, to come up with a clearer definition of waters of the United States."