The Clean Water Rule

By Chris Wright

The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (COE) earlier this year published the “Clean Water Rule: Definition of ‘Waters of the Unites States'”. This new ‘final’ rule was intended to take effect on August 28, 2015. However, rulings in several U.S. District Courts has led to a stay of implementation of the rules until it can be reviewed by the courts. It is likely that this will eventually be decided by the U.S. Supreme Court.

What the rule intends to do is clearly define what is and what is not jurisdictional waters of the United States. The pre-amble to the rule states that the “scope of jurisdiction in [the Final Rule] is narrower than that under the existing regulation. Fewer waters will be defined as ‘waters of the United States’ under the rule than under the existing regulations, in part because the rule puts important qualifiers on some existing categories such as tributaries.”

The net effect of the stay on the new rule is that the COE will be operating under the previous guidance until the issue is resolved. Projects that may need a COE permit to undergo their development may move forward with the presumption that the permit is needed and that all of the standard permitting protocols are in effect.