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The “Waters of the United States” Rule Sows Yet More Confusion

The Environmental Protection Agency and the Army Corps of Engineers have attempted over a number of years to develop a workable definition of “waters of the United States,” which form the boundaries of federal jurisdiction under the Clean Water Act. The new rule was intended to provide the regulated community with bright-line certainty while simultaneously assuring that the rule would not expand federal authority beyond permissible Clean Water Act limits. To no one’s surprise, immediately after the most recent rule was issued, numerous states and industry groups sued, and both the 6th Circuit Court of Appeals and North Dakota District Court agreed to stay the rule’s implementation until courts could substantively review the regulation (which has not yet occurred). In the meantime, a significant procedural controversy has been raised as to whether the circuit courts or district courts have original jurisdiction under the Clean Water Act to first hear the direct challenges.

The scope of “waters of the United States” has already been the subject of three seminal Supreme Court cases, scores of appellate court cases, that many more of district court and administrative cases, and multiple rulemaking efforts. It is likely the ultimate fate of the rule will land on the Supreme Court’s docket. To understand the most recent attempt to define “waters of the United States” and, in turn, the reach of federal authority to regulate water pollution, please click here to read “The Never-Ending Saga,” an article published in the Environmental Forum by Josh Bloom, a Principal in Meyers Nave’s Land Use and Environmental Law Practice Groups. For a detailed analysis of the rule, including a redline of the differences between the proposed and final definition of “waters of the United States,” please click here to read a Meyers Nave Client Alert authored by attorneys Greg Newmark and Sarah Quiter.