In our Spring 2015 Environmental Law Update we predicted that there would be judicial and legislative challenges to the EPA and Army Corps’ new Clean Water Rule expanding the scope of jurisdictional waters of the United States. The Rule seeks to codify existing criteria that EPA and the Corps have been applying on a case-by-case basis using the three alternative tests announced by the U.S. Supreme Court in Rapanos v. United States. Even before the Rule was to take effect on August 28, 2015, 27 states filed federal lawsuits challenging the regulation.
On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed the Rule nationwide. The morass of litigation prompted EPA to move to centralize pretrial proceedings in the District of Columbia. On October 13, 2015, the United States Judicial Panel on Multidistrict Litigation issued an Order denying transfer because the various lawsuits will involve very limited pretrial discovery as the cases will be decided on the administrative record and will turn on questions of law on alleged exceedances of statutory and constitutional authority in promulgating the rule. The EPA and the Corps have resumed nationwide use of the prior regulations by applying case law, policy and the best science and technical data on a case-by-case basis in determining which waters and wetlands are protected under the Clean Water Act. On the legislative front, on November 4, 2015, over the threat of a Presidential veto, the U.S. Senate approved a resolution to nullify the Clean Water Rule. “The more things change, the more they stay the same.” Stay tuned.