Sixth Circuit Court of Appeals Stays Water of the U.S. Rule Nationwide

10/29/2015 | Construction Blog, Real Estate Blog

The United States’ Sixth Circuit Court of Appeals in Cincinnati, Ohio, has placed a nationwide stay on the Obama Administration’s Waters of the United States rule. The final rule went into effect in August of this year and was being put into effect before the appeals court stayed its implementation. According the Court, the stay was put in place to temporarily clear up the confusion being created by both the implementation of the law and the legal challenges to it.

If it stands, the Water of the U.S. rule would greatly expand the power of the Environmental Protection Agency and the Army Corps of Engineers to control water and land uses under the Clean Water Act. The EPA argues that this increased jurisdiction is necessary to implement the law and carry out its administrative responsibilities. Opponents claim that the new rule is overly expansive and will impose a much more cumbersome permitting process; and they maintain that with more and more complicated permits comes increased costs and delays.

The stay implemented by the appeals court allows time for cases presently pending to work their way through the system and bring clarity to the issue. At present there is at least one federal court ruling from North Dakota blocking implementation in 13 states.

While debate about whether it is good policy or not is fair, there is no question the implementation of this rule would greatly impact the construction industry. It’s worth tracking for that reason.