Despite the ultimate goal of eliminating confusion in identifying “waters of the U.S.” subject to protection under the Clean Water Act (CWA), implementation of the EPA and Army Corps of Engineers’ Clean Water Rule continues to be subject to a great deal of uncertainty under several ongoing legal challenges. The final Clean Water Rule was scheduled to be in effect as of August 28, but an August 27 court ruling puts implementation on hold – though for whom this will apply is still a matter of contention.
An August 27 preliminary injunction by the U.S. District Court for the District of North Dakota halts implantation of the Clean Water Rule for at least 13 states (Alaska, Arizona, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming). The District of North Dakota injunction comes after the U.S. Court of Appeals for the 6th Circuit recently consolidated 12 other Clean Water Rule lawsuits for hearing in a separate pending case.
For its part, EPA has stated that it considers the Clean Water Rule to be in effect as of August 28 for all states except the 13 named in the District of North Dakota preliminary injunction. Of course, other legal opinions differ, believing that the preliminary injunction should apply to all states. What is guaranteed is that the courtroom battles will continue for the foreseeable future and any certainty in what will ultimately be considered “waters of the U.S.” will remain elusive, at least in the short-term.