Clean Water Rule Update
Court ruling rejects Administration delay; puts CWRule into place in 26 states
(August 16, 2018)
What happened:
A U.S. District court today issued a nationwide injunction on the Trump administration’s delay of the Clean Water Rule, a regulation that defines which wetlands and waterways get federal protection under the Clean Water Act as “waters of the United States.”
In February, the Trump administration issued a rule meant to delay implementation the Clean Water Rule while EPA and the Army Corps of Engineers worked up a new version. The Court yesterday ruled that the February delay rule was unlawful.
What it means:
The decision means that the Clean Water Rule is now the law of the land in 26 states where district court judges have not stayed the regulation. Those states are:
- California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia and Washington.
The Clean Water Rule is still on hold in 24 states as the result of separate litigation and injunctions from district courts in North Dakota and Georgia.
What comes next:
Renewed congressional attacks on the Rule: This order will likely will supercharge congressional efforts to repeal the rule. We will watch closely on the congressional front.
Increased litigation: Although the CWRule will now go into affect in 26 states, separate district court injunctions in North Dakota and Georgia mean that the Rule will still not apply in 24 states. It is likely that additional states in the group of 26 will pursue legal challenges to stop the rule from applying and that opponents of the rule will ramp up legal challenges to the rule across the country to stay implementation of the rule in even more states.
Ongoing administrative process to repeal and replace the rule: The repeal and replace process is still underway:
- Repeal: The public comment period closed last week for comments on a supplemental repeal rule from the administration. TU joined with the National Wildlife Federation in submitting comments for the record.
- Replace: We are awaiting publication of the administration’s proposed replace rule, which will offer a new proposal for defining waters of the united states. We expect to see that proposal in early September.
