EPA Clean Water Rule in Effect in 37 States
Last month, following a last-minute preliminary injunction by a North Dakota judge, the U.S. Environmental Protection Agency's (EPA) and U.S. Army Corps of Engineers' (Army Corps) controversial Clean Water Rule (also known as the "Waters of the U.S." rule) went into effect in 37 states. The rule aims to clarify which waters fall under federal jurisdiction of the Clean Water Act (CWA).
There continues, however, to be legal and congressional challenges to the rule. The 29 states that filed suit against the EPA and the Army Corp though 10 separate cases challenged the rule on the grounds that the agencies overstepped their constitutional authority and asked for an injunction. The cases have been consolidated into a single suit under the Sixth Circuit of Appeals. Two other judges who heard petitions from states for an injunction failed to block the rule before it went into effect.
Last week, the United States District Court for North Dakota confirmed that the scope of its preliminarily injunction of the Clean Water Rule is limited to the 13 states that were parties to the litigation before the court: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.
Meanwhile in Congress, while the House has passed a bill to restart the rulemaking process, the Senate is still short of the 60 votes needed to pass a similar bill. This month, Congress must act on the FY16 appropriations and there remains the potential for policy riders to block the rule and restart the rulemaking process in any appropriations, omnibus or continuing resolution bill.
Related to the questions that have been asked regarding the treatment of stormwater systems under the rule, Senator James Inhofe (R-OK) recently wrote to EPA and Army Corps asking how stormwater systems that were built prior to the enactment of the Clean Water Act and that may have been built on historically wet areas, as is the case in D.C. and many other older communities, will be treated under the rule.
With the rule now in effect in a majority of the states, EPA has published the first of several expected Q&A documents to address technical and practical questions regarding implementation of the rule. NLC is hopeful that these documents will address the outstanding concerns that have been raised with the rule, particularly around the issues of "dry land" as it relates to the stormwater exclusion: who is responsible for determining whether a feature meets the terms of the exclusion and how should that determination be made.