Lawsuits Filed Over Final Rule on the "Waters of the United States"

June 30, 2015
Jonathan E. Rinde
MGKF Special Alert

Yesterday, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published their final rule defining the scope of the term "waters of the United States," which is used to determine federal jurisdiction pursuant to the requirements of the Clean Water Act, including but not limited to the federal Section 404 wetlands permitting program.  The final rule in the Federal Register can be accessed here and will take effect in 60 days -- Friday, August 28. 

As predicted in an earlier MGKF Special Alert, 18 states filed suit in three different lawsuits opposing the final rule, alleging in the lawsuit filed by Texas that the final rule "is an unconstitutional and impermissible expansion of federal power over the states and their citizens and property owners."  The Texas lawsuit was filed in federal court in Texas and was joined by Mississippi and Louisiana.  Ohio and Michigan sued in Ohio federal court.  Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming filed suit in North Dakota federal court.  Notably, no New England, Mid-Atlantic or southern states have filed suit as of this date. 

Although the resolution of these lawsuits is uncertain, one thing is clear - the dispute over the meaning of the phrase "waters of the United States" as used in the Clean Water Act is far from over.  If you would like more information regarding the rule or its potential effects on upcoming or ongoing projects, please feel free to contact Jonathan Rinde (jrinde@mankogold.com or 484-430-2325) or Christopher Ball (cball@mankogold.com or 484-430-2358).