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In re Environmental Protection Agency

ELR Citation: 45 ELR 20195
Nos. 15-3799 et al., (6th Cir., 10/09/2015)

The Sixth Circuit issued a nationwide stay enjoining the "waters of the United States" rule pending the court's determination as to whether it has subject matter jurisdiction to review the rule. The court held that the petitioning states demonstrated a substantial possibility of success on the merits of their claims. Whether the rule's treatment of tributaries, "adjacent waters," and waters having a "significant nexus" to navigable waters are consistent with U.S. Supreme Court precedent is not clear, and the rulemaking process by which the distance limitations were adopted is facially suspect. In addition, while there is no compelling showing that any of the petitioners will suffer immediate irreparable harm if a stay is not granted, the burden and impact on the public in general if the rule goes into effect is of great concern to the court. And in light of the disparate rulings on this very question issued by district courts around the country, the court concluded that a nationwide stay would restore uniformity of regulation under the familiar, if imperfect, pre-rule regime, pending judicial review. A dissenting judge would not issue a stay absent a finding of jurisdiction to review the rule in the first instance.