The Sixth Circuit has just stayed the WOTUS rule nationwide, by a 2-1 vote, until it determines whether it has jurisdiction over the petitions for review. The majority found a substantial possibility of success on both merits grounds (that the rule does not comport with even Justice Kennedy’s Rapanos opinion) and procedural grounds (that significant changes in the rule were never put to notice and comment). The order is, “The Clean Water Rule is hereby STAYED, nationwide, pending further order of the court.”
The proposed rule by the U. S. Environmental Protection Agency (EPA) and U. S. Army Corps of Engineers (Corps) redefining the scope of waters protected under the Clean Water Act would have caused confusion and been detrimental to the economy. It evaded the intent and the letter of the law to make the regulatory process less costly and more efficient for small businesses and was not based on sound science.
The claim by the EPA and the Corps that virtually anything could be a “tributary” if it is determined to have a bed, bank and an ordinary high-water mark could erroneously include manmade ditches, pipes, canals, dams, groundwater and isolated wetlands. Currently a “tributary” must have some nexus to navigable waters.
The Court noted that Congress intended to create a partnership between the federal agencies and state governments to protect the nation’s water resources. This rule proposed by the federal agencies blatantly ignores this history of partnership and fails to recognize that there are limits on federal authority.
NAHB and HBAG were joined in the opposition to this flawed rule by many other groups involved in or affected by construction as well as many state governments and even the agricultural community.
Everyone wants clean water to drink and for recreational purposes. HBAG joins our partners in urging EPA to start over and develop a more meaningful and balanced rule that reflects the spirit of the Clean Water Act (Waters of the US) and the Regulatory Flexibility Act.
Please contact NAHB or HBAG with questions or concerns. o