September 9, 2015
Rule Now Effective In All Other States, But Legal Challenges Loom Nationwide
As discussed in a previous DGS alert, on May 27, 2015, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) issued the new Clean Water Rule (Rule) defining the extent of jurisdictional "Waters of the United States" regulated under the Clean Water Act (CWA). The Rule was set to take effect nationwide on August 28, 2015. Right before that effective date, however, a federal judge in North Dakota temporarily stayed the Rule in 13 states, including Colorado and several other Western states. The Rule has taken effect in all other states, pending any actions by various other courts where judicial challenges have been brought, resulting in a patchwork regulatory landscape and further complicating the legal status of the Rule. Below is a brief discussion about what you should know if you are undertaking a project where Clean Water Act jurisdiction might be an issue.
In June 2015, 13 states—Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, North Dakota, South Dakota, Wyoming, and the New Mexico Environment Department and State Engineer—filed suit in the District of North Dakota challenging the Rule on multiple grounds. On August 27, 2015, a day before the Rule's effective date, the district court granted the plaintiff states' motion for preliminary injunction, thereby barring implementation of the Rule during the pendency of that case. On September 4, 2015, the court issued an order clarifying and limiting the scope of the injunction to apply only to the 13 plaintiff states. The court declined to apply the injunction nationwide out of respect for other states not party to the litigation and other courts that have denied or have yet to rule on motions for preliminary injunctions in cases challenging the Rule.