More on the Clean Water Rule’s Legal Status

Apr 27, 2018

A summary of the legal maneuvering to date.

A recent article in the Perkins Coie California Land Use & Development Law Report by Jacob Aronson and Marc Bruner provides an excellent summary of recent court decisions and legal maneuvering related to the validity of the 2015 Clean Water Rule.

The language of the Clean Water Act (CWA) providing the U.S. Environmental Protection Agency (EPA) with jurisdiction to formulate and enforce environmental regulations related to bodies of water in the United States is, as the authors note, ambiguous.

The Clean Water Rule of 2015, formulated using the Obama Administration’s broad interpretation of the language of the CWA, would give the EPA expanded oversight of bodies of water in the U.S. Opponents of the Rule challenge its validity based upon a more narrow interpretation of the language of the CWA.

Business groups have filed suits challenging the Rule in both federal district courts and federal courts of appeals. This has been putting implementation of the Rule on hold.

“In a decision issued on January 22, the U.S. Supreme Court ruled in National Association of Manufacturers v. Department of Defense, 138 S. Ct. 617 that challenges to the Obama’s Administration’s 2015 Clean Water Rule must be brought in federal district courts, rather than directly in the federal courts of appeals.” The court ruling unanimously rejected the EPA’s broad interpretation of its authority and “held that challenges to the Clean Water Rule must be heard in the first instance in the district courts.”

At the present time there are numerous cases pending in district courts throughout the country. The authors provide a list of these cases.

What is noteworthy for contractors is that the pre-2015 regulations will remain in place until 2020, although this decision by the EPA and The Army Corps of Engineers is being “challenged by environmental groups and a coalition of states.”

In the interim the EPA and the Corps plan “to rescind and replace the Clean Water Rule of 2015.”

Source—

EPA Delays Applicability of Clean Water Rule While Challenges to Rule Proceed in District Courts, Jacob Aronson and Marc Bruner, California Land Use & Development Report, April 4, 2018.