Stormwater runoff
Dave Harp - Bay Journal

The U.S. government's new "Waters of the United States" regulation defining the Environmental Protection Agency's jurisdiction over wetlands and its authority to regulate construction and farming activities that might pollute waterways ran into major court challenges as soon as the EPA published the rule. JLC reported on the story when the rule was published in June (see: "Clear as Mud: New EPA Rule Roils the Waters"), and again in September as lawsuits challenging the rule gained traction (see: "EPA Wetlands Rule Bogged Down in Courts").

A North Dakota district court blocked the rule's implementation in 13 states in late August. Now, the U.S. Court of Appeals for the Sixth Circuit has stayed the rule across the entire country. The court's opinion is on file here (see: "In re: Environmental Protection Agency and Department of Defense Final Rule"). The court is far from throwing the rule out: the stay is issued pending the appeals court's consideration of whether the court even has proper jurisdiction in the underlying suit. But the ruling does reflect the court's determination that plaintiffs who oppose the rule have a good chance of winning their case somewhere down the road.

The court hangs this conclusion on the argument that the drafters of the rule never got public comment on a key element of the new rule: its arbitrary criterion of distance between a location the government wants to regulate and a watercourse the government says it has the power to protect. Under the new rule, tributaries of navigable waters fall under regulation, and so do seasonally wet locations within 4,000 feet of such a tributary. Opponents of the rule say they never got a chance to comment on this 4,000-foot threshold distance, and they question its validity now. Writing for the 2-justice majority on the three-judge appeals panel, Judge Keith McKeague concurred: "Although the record compiled by respondent agencies is extensive," McKeague said, "respondents have failed to identify anything in the record that would substantiate a finding that the public had reasonably specific notice that the distance-based limitations adopted in the Rule were among the range of alternatives being considered."

If opponents of the rule succeed in eliminating even the distance calculation aspect of the rule from the rule book, it will significantly reduce the scope of the rule, as well as its uncertain impact (nobody in construction or agriculture has any experience in applying such a distance criterion). But for now, builders and developers don't have to worry about the new rule: until the courts have had their say, the rule has no force.