EPA Abandons Legal Fight on Delay of Obama Clean Water Rule

Clean_Water_Rule(March 12, 2019) - EPA announced March 8 that it is abandoning further legal efforts to delay implantation of the 2015 Clean Water Rule, leaving a regulatory patchwork across the country where the Rule is in effect in some states but not in others. 

For the time being, the 2015 Clean Water Rule is effective in 26 states. Pre-2015 jurisdictional regulations govern in the other 24 states.

2015 rule on hold in these 24 states:

EPA Region 3: West Virginia

EPA Region 4: Georgia, Alabama, Florida, North Carolina, South Carolina, Kentucky

EPA Region 5: Indiana, Wisconsin

EPA Region 6: Arkansas, New Mexico

EPA Region 7: Kansas, Missouri, Nebraska

EPA Region 8: All states - Utah, North Dakota, South Dakota, Colorado, Wyoming, Montana

EPA Region 9: Nevada, Arizona

EPA Region 10: Alaska, Idaho

2015 rule in effect in these 26 states:

EPA Region 1: All states - Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut

EPA Region 2: Both states - New York, New Jersey

EPA Region 3: Pennsylvania, Virginia, Maryland, Delaware

EPA Region 4: Mississippi, Tennessee

EPA Region 5: Minnesota, Michigan, Illinois, Ohio

EPA Region 6: Texas, Oklahoma, Louisiana

EPA Region 7: Iowa

EPA Region 9: California, Hawaii

EPA Region 10: Oregon, Washington

EPA attempted, in 2018, to secure a two-year nationwide delay of the 2015 Obama-era Clean Water Rule addressing federal authority under the Clean Water Act (CWA). This action was challenged and invalidated by several district court judges on procedural grounds. EPA then appealed the rulings. 

But on March 8, EPA and the Army Corps of Engineers filed voluntary motions to dismiss their appeals.  The motions do not provide a reason for abandoning the appeals, but these actions could signal that EPA and the Army Corps are finalizing a formal repeal of the 2015 rule.  If the rule itself if formally repealed, then it would not have applicability in any part of the country. 

EPA and the Army Corps are also proceeding on a separate track to propose a new "waters of the United States" (WOTUS) regulatory definition.  EPA and the Corps signed a proposed rule revising the definition in December 2018, with the intent for the new rule – once effective – to repeal the Clean Water Rule and the pre-2015 regulations permanently.  The 60-day public comment period on the proposal closes on April 15.  NACWA is preparing comments on behalf of its members. 

Any members with questions about the WOTUS issues or NACWA’s planned comments can contact Emily Remmel, NACWA’s Director of Regulatory Affairs.