Dive Brief:
- The Sixth U.S. Circuit Court of Appeals has issued a stay, on a 2-1 vote, against a controversial Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers rule, instituted as part of the Clean Water Act, which would bring smaller bodies of water under federal jurisdiction.
- The Waters of the U.S. rule, challenged by multiple states and many trade associations, including the National Home Builders Association (NAHB), would increase the number of bodies of water under the act by 3%, the Wall Street Journal reported, requiring a lengthy application process prior to industrial use of the lands on which the regulated waters flow.
- According to the NAHB, prior to enacting the rule, the EPA failed to consult with business stakeholders and state and local governments, produce a cost-benefit analysis or comply with the Regulatory Flexibility Act, which is supposed to ensure that the needs of small businesses are considered when enacting federal regulations.
Dive Insight:
This ruling, albeit temporary, is a victory for the states and business groups who argue the rule is arbitrary and overreaching.
"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," said the court in its majority opinion.
The NAHB has maintained that the EPA was only to clarify the existing law but, instead, created a new rule that puts ditches and even pools of water produced by heavy rainfall under the agency's purview. This would require a lengthy EPA application review in order to perform any industrial service on potentially millions of additional acres of land.
"We applaud the Sixth Circuit for taking this action to suspend the EPA's water rule," NAHB Chairman Tom Woods said in a statement. "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."
