For most federal rules, you don’t need a map to figure out in which states they’re the current law. But you do for the 2015 “Clean Water Rule,” which significantly expanded the reach of the Clean Water Act by redefining the term “waters of the United States.” That’s one reason why, on September 12, 2019, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers released a new rule to repeal the Clean Water Rule and restore prior regulations. This “repeal rule” will take formal effect 60 days after its publication in the Federal Register.
The Clean Water Rule has led a tumultuous legal life since it was issued in mid-2015. Only a few months after its publication, the U.S. Court of Appeals for the Sixth Circuit stayed its effect across the country. The Supreme Court would later vacate that stay under the view that district courts, not appellate courts, are the appropriate battleground for the rule’s proponents and critics. And a battleground they have become. As we have previously discussed, federal district courts in Georgia and North Dakota have issued injunctions against the rule’s effect in many states. A federal court in Texas has done the same, with the result that, as things currently stand, the Clean Water Rule is not controlling law in more than half the states.
The new repeal rule will restore national uniformity by undoing the Clean Water Rule’s effect in the remaining 22 states. As explained in the lengthy preamble to the new rule, the federal agencies now see the Clean Water Rule as exceeding the bounds of their jurisdiction under the Clean Water Act, and quite possibly even Congress’s power under the U.S. Constitution’s Commerce Clause, and they believe that a proper interpretation of the governing statute should give more credence to states’ traditional roles in regulating water resources. The repeal rule takes particular aim at the 2015 definition of covered “tributaries,” including ephemeral streams that evidence flow only in response to occasional rain, the 2015 rule’s concept of wetlands “neighboring” wetlands, and its use of distance-based jurisdictional limits.
Because of the repeal rule, regulated entities in all 50 states can return to relying on the agencies’ 2008 guidance in response to the Supreme Court’s Rapanos decision, at least for the rest of 2019. The agencies are expected to publish their “replacement” for the 2015 Clean Water Rule in early 2020. We’ll have more on that rule when it emerges.