On October 9th, the U.S. Court of Appeals for the Sixth Circuit enacted a nationwide stay of the Environmental Protection Agency’s final regulations that dramatically expand the definition of “waters of the United States” under the Clean Water Act. The National Association of Home Builders (NAHB) commended the court on its action.
“We applaud the Sixth Circuit for taking this action to suspend the EPA’s water rule,” said NAHB Chairman Tom Woods, a home builder from Blue Springs, Mo. “NAHB has been working diligently on the legislative and legal fronts to overturn this EPA rule that raises housing costs, tramples states’ rights and adds unnecessary regulatory burdens to small businesses.”
The court found a number of problems, including how the new definitions are at odds with the Supreme Court’s earlier rulings and that the final rule, which went into effect Sept. 28, included definitions significantly different from the rule proposed in 2014.
As required by law, EPA failed to consult with state and local governments, confer with business stakeholders, comply with the requirements of the Regulatory Flexibility Act or produce an accurate cost-benefit analysis.
In its ruling, the Sixth Circuit stated: “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.”
While the federal courts figure this out, the agencies will have to use their previous definitions. For the time being, EPA and the Army Corps of Engineers must prove that a water is jurisdictional before automatically sweeping it into their regulatory nets.
“Our members want to protect the nation’s waters, but we need clear rules,” said NAHB’s Woods. “Today’s court decision is a step in the right direction.”