Final Repeal of the Clean Water Rule: the End or Another Beginning to the Regulatory Patchwork?

Environmental Alert

(by Lisa Bruderly and Gary Steinbauer)

On October 22, 2019, the U.S. Environmental Protection Agency (USEPA) and U.S. Army Corps of Engineers (Corps) published a final rule in the Federal Register repealing the Obama administration’s 2015 rule redefining “waters of the United States” (WOTUS) under the Clean Water Act, typically referred to as the “Clean Water Rule” (CWR).  In addition to repealing the CWR, the final rule will restore the regulatory definition of WOTUS that existed prior to the CWR for the 22 states (including Pennsylvania) where the CWR’s WOTUS definition is currently in effect.  The pre-CWR definition of WOTUS, along with agency guidance, are themselves controversial.  The final repeal rule becomes effective on December 23, 2019.

USEPA and the Corps released a pre-publication version of the final repeal rule on September 12, 2019.  Almost immediately, environmental groups and several states vowed to file lawsuits challenging the final repeal rule.  These lawsuits likely will be heard by multiple federal district courts throughout the country and could seek injunctions preventing the final repeal rule from taking effect.  While the intent of the final repeal rule is to end the existing regulatory patchwork where the CWR’s WOTUS definition currently is in effect in 22 states, the lawsuits challenging the final repeal rule could result in a different regulatory patchwork, further exacerbating the regulatory uncertainty surrounding the application definition of WOTUS.  In an interesting twist, the New Mexico Cattle Growers’ Association filed a lawsuit on October 22, 2019 in a federal district court in New Mexico, challenging the final repeal rule because the pre-CWR WOTUS definition and related agency guidance that it readopts are allegedly unlawful.

Babst Calland discussed the final repeal rule in detail in a previous Environmental Alert and will continue to actively monitor the shifting regulatory landscape involving the definition of WOTUS.  If you have questions about the final repeal rule, please contact Lisa M. Bruderly at (412) 394-6495 or lbruderly@babstcalland.com or Gary E. Steinbauer at (412) 394-6590 or gsteinbauer@babstcalland.com.

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