Environmental

Waters of the U.S. Rule on Nationwide Hold

The U.S. Court of Appeals for the Sixth Circuit has stayed nationwide application of a controversial rule designed to clarify what water bodies and wetlands are subject to federal Clean Water Act regulation in a 2-1 decision, [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance]. Previously, appellate courts had blocked the "Waters of the United States" rule's application in a handful of Western states. The Obama administration planned for the rule to clarify what water bodies would and would not be subject to regulation by the Environmental Protection Agency and the U.S. Army Corps of Engineers.

While there has been plenty of controversy surrounding the substance of the rule, however, this ruling does not question the substance of the measure. Instead, the Court said it needs time to determine if the courts of appeal or the district courts are the proper courts to hear challenges.

Generally states, industry, and environmental advocacy groups favor federal trial courts as the proper venue for substantive disputes over the new rule. The federal government, however, believes such challenges should be heard in the courts of appeals.

Ballard Spahr’s Environment and Natural Resources Group has extensive experience preparing public comments on national rulemakings. The Group also advises on national and regional compliance, permitting, relevancy, development, business planning, and contamination matters arising in connection with environmental and natural resources laws and claims, and includes a particular focus on climate change and sustainability. For more information, please contact Harry Weiss at weiss@ballardspahr.com.


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