Definition of Waters of U.S. v. U.S. Army Corps of Eng'rs (In re Envtl. Prot. Agency), Nos. 15–3799

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtMcKEAGUE, Circuit Judge.
Citation803 F.3d 804
PartiesIn re: ENVIRONMENTAL PROTECTION AGENCY and Department of Defense Final Rule; “clean Water Rule: Definition of Waters of the United States,” 80 Fed.Reg. 37,054 (June 29, 2015). State of Ohio, State of Michigan, and State of Tennessee (15–3799); State of Oklahoma (15–3822); State of Texas, State of Louisiana, and State of Mississippi (15–3853); State of Georgia, State of West Virginia, State of Alabama, State of Florida, State of Indiana, State of Kansas, Commonwealth of Kentucky, North Carolina Department of Environment and Natural Resources, State of South Carolina, State of Utah, and State of Wisconsin (15–3887), Petitioners, v. United States Army Corps of Engineers, et al., Respondents.
Decision Date09 October 2015
Docket NumberNos. 15–3799,15–3853.,15–3822,15–3887

803 F.3d 804

In re: ENVIRONMENTAL PROTECTION AGENCY and Department of Defense Final Rule; “clean Water Rule: Definition of Waters of the United States,” 80 Fed.Reg. 37,054 (June 29, 2015).

State of Ohio, State of Michigan, and State of Tennessee (15–3799); State of Oklahoma (15–3822); State of Texas, State of Louisiana, and State of Mississippi (15–3853); State of Georgia, State of West Virginia, State of Alabama, State of Florida, State of Indiana, State of Kansas, Commonwealth of Kentucky, North Carolina Department of Environment and Natural Resources, State of South Carolina, State of Utah, and State of Wisconsin (15–3887), Petitioners
v.
United States Army Corps of Engineers, et al., Respondents.

Nos. 15–3799
15–3887
15–3822
15–3853.

United States Court of Appeals, Sixth Circuit.

Oct. 9, 2015.


McKEAGUE, J., delivered the order of the court in which GRIFFIN, J., joined. KEITH, J. (pg. 809), delivered a separate dissent.

ORDER OF STAY

McKEAGUE, Circuit Judge.

Petitioners in these four actions, transferred to and consolidated in this court by the Judicial Panel on Multi–District Litigation for handling as a multi-circuit case, represent eighteen states1 who challenge the validity of a Final Rule adopted by respondents U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency, “the Clean Water Rule.” 80 Fed.Reg. 37,054 (June 29, 2015). The Clean Water Rule clarifies the definition of “waters of the United States,” as used in the Clean Water Act, 33 U.S.C. § 1251 et seq., “through increased use of bright-line boundaries” to make “the process of identifying waters protected under the Clean Water Act easier to understand, more predictable and consistent with the law and peer reviewed science, while protecting the streams and wetlands that form the foundation of our nation's water resources.”

803 F.3d 806

80 Fed.Reg. at 37,055. Petitioner states contend that the definitional changes effect an expansion of respondent agencies' regulatory jurisdiction and dramatically alter the existing balance of federal-state collaboration in restoring and maintaining the integrity of the nation's waters. Petitioners also contend the new bright-line boundaries used to determine which tributaries and waters adjacent to navigable waters have a “significant nexus” to waters protected under the Act are not consistent with the law as defined by the Supreme Court, and were adopted by a process that failed to conform to the rulemaking requirements of the Administrative Procedures Act (“APA”).

Although petitioners have moved the court to dismiss their own petitions for lack of subject matter jurisdiction under 33 U.S.C. § 1369(b)(1) —a matter on which briefing is pending—they also move for a stay of the Clean Water Rule pending completion of the court's review. Respondents and numerous intervenors oppose the stay.2 Respondents contend that we have jurisdiction, but insist that petitioners have not made the requisite showing to justify a stay of the Rule that became effective August 28, 2015. For reasons that follow, we now grant the stay pending determination of our jurisdiction.

The parties agree that our decision is guided by consideration of four factors: “(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.” Mich. Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.1991). See also Nken v. Holder, 556 U.S. 418, 433, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). These are not prerequisites that must be met, but interrelated considerations that must be balanced. Griepentrog, 945 F.2d at 153. The motion for stay is addressed to our discretion, early in the case based on incomplete factual development and legal research, for the purpose of preserving the status quo pending further proceedings. United States v. Edward Rose & Sons, 384 F.3d 258, 261 (6th Cir.2004). The party seeking a stay bears the burden of showing that the circumstances of the particular case justify exercise of our discretion, guided by sound legal principles, to maintain the status quo pending conclusive determination of the legality of the action. Nken, 556 U.S. at 433–34, 129 S.Ct. 1749.

The present circumstances pose a threshold question: What is the status quo? Petitioners ask us to stay enforcement of the Clean Water Rule that went into effect on August 28, 2015. They ask us to restore the status quo as it existed before the Rule went into effect. Respondents' position is that the status quo is best preserved by leaving the Rule alone. Considering the pervasive nationwide impact of the new Rule on state and federal regulation of the nation's waters, and the still open question whether, under the Clean Water Act, this litigation is properly pursued in this court or in the district courts, we conclude that petitioners have acted without undue delay and that the status quo at issue is the pre-Rule regime of federal-state collaboration that has been in place for several years, following the Supreme Court's decision in Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006).

803 F.3d 807

Regarding this “open question,” we are mindful of the dissent's concern that we should not consider exercising our discretionary power to issue a stay before confirming our jurisdiction under the Clean Water Act, 33 U.S.C. § 1369(b)(1), to do so. We have no doubt of our authority, however, “to make orders to preserve the existing conditions and the subject of the...

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