As previously reported in the Smith, Gambrell & Russell Environmental & Sustainability Newsletter, on June 29, 2015, the Environmental Protection Agency and the U.S. Army Corps of Engineers released their final rule defining the "waters of the United States" and the jurisdictional scope of the Clean Water Act. The rule is in response to the U.S. Supreme Court's 2006 decision in Rapanos v. United States, 547 U.S. 715 (2006), and will go into effect on August 28, 2015. The rule is expected to have significant impact on a number of industries, including farming, energy transmission, transportation, construction, and agriculture.
On July 2, 2015, The National Association of Home Builders, along with several farm and business organizations, filed a lawsuit seeking to overturn the new rule. In their suit, the plaintiffs assert that the rule goes beyond congressional intent and the limits of jurisdiction set forth by the U.S. Supreme Court in Rapanos. The plaintiffs contend that the rule leaves the identification of jurisdictional waters so vague and uncertain that their members cannot determine which activities undertaken on their land will subject them to criminal and civil penalties under the Clean Water Act. They argue that the final rule contains overly broad language that could place millions of additional acres of private land and many miles of dry stream beds under federal jurisdiction. According to the plaintiffs, the rule would permit federal jurisdiction over certain roadside ditches, isolated ponds, and channels that may only flow after heavy rainfall.
Two other lawsuits have been filed against the final rule. In the first, Georgia, et al. v. McCarthy, nine states argue that the rule infringes on state sovereignty. The states argue that the Agencies' rule eliminates the states' authority to regulate and protect water under the states' standards and imposes significant federal burdens upon the states, homeowners, business owners, and farmers. In the second, North Dakota, et al. v. McCarthy, thirteen states argue that the Agencies failed to meaningfully consult with the states and that the rule will burden the states by requiring more permitting. While it is not uncommon for states to challenge agency rulemaking, these two cases are somewhat unique in that they make an unprecedented appeal for State's rights and the 10th Amendment, and represent a large coalition of states.
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