The U.S. Court of Appeals for the 6th Circuit has issued a nationwide preliminary injunction for the Waters of the United States Rule.

On Friday, October 9, the U.S. Court of Appeals for the 6th Circuit issued a nationwide preliminary injunction preventing implementation of a regulation issued by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers that defines the scope of the "waters of the United States" (WOTUS). WOTUS is subject to federal regulatory jurisdiction under the Clean Water Act (CWA). WOTUS represents the EPA and Army Corps' effort to clarify the scope of federal regulatory jurisdiction in light of Supreme Court decisions in 2001 and 2006, which concluded the agencies had adopted an unduly broad interpretation of the scope of their authority. This stay expands on the injunction issued in August by a federal judge in North Dakota for 13 states.

According to the EPA's website, the Clean Water Rule defines and protects tributaries that affect downstream waters, provides certainty in how far safeguards extend into other bodies of water, protects that nation's water, focuses on streams (not ditches), maintains the status of waters within municipal separate storm sewer systems, and reduces the use of case-specific analysis.

Many groups within the landscape industry object to the scope of WOTUS, including the National Association of Landscape Professionals (NALP), saying the new rule controls what people can build or plant around streams, ponds, ditches and stormwater runoff areas. They say the WOTUS rule extends regulations well beyond the original intent of the law, and that the definitions provided in the new rule are confusing for professionals to ascertain whether or not their clients' properties contain protected waters.

The NALP and advocacy groups caution that while the stay is a positive development, that it's not a final decision. The injunction put in place by the court means that final WOTUS rule cannot be implemented until the legal questions surrounding it have been reviewed. These legal issues include whether the rule complies with Supreme Court precedent, whether the EPA gave the public a fair chance to comment on the rule, and whether the Army Corps agreed to the final rule. In the meantime, EPA and the Army Corps must use their previous definitions to prove that a body of water is jurisdictional.

"We applaud the Sixth Circuit for taking this action to suspend the EPA's water rule," said National Association of Home Builders Chairman Tom Woods. "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."

NALP and the Golf Course Superintendents Association of America encourage their members to continue advocating for Senate legislation that would require EPA and the Corps to withdraw the rule (S. 1140). The House has already passed such legislation (H.R. 1732).