Up the Creek Without a Paddle: Navigating New Clean Water Rule
The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers promulgated a new rule under the Clean Water Act (CWA ) this past June with the intent of finally clarifying the agencies’ jurisdiction over “waters of the United States.” Unfortunately, the controversial new Clean Water Rule has only muddied the waters, as its future is uncertain. Conflict over the rule centers around industry and property owners’ need for predictable permitting guidelines within the authority of the CWA and the agencies’ goal of ensuring vital wetlands and waterbodies are adequately protected. Challenges to the rule were filed in federal district courts and courts of appeals all over the country by individual states, the regulated community and environmental organizations. As discussed below, all eyes are now on the U.S. Court of Appeals for the Sixth Circuit, which stayed the implementation of the rule across the country and now must decide whether it even has jurisdiction to decide the substantive issues of the case.