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Bill to Nullify Clean Water Rule Vetoed

On January 19, 2016, President Obama vetoed legislation that, if approved, would have nullified the Clean Water Rule. The controversial rule, which redefines which water bodies qualify as “waters of the United States” under the Clean Water Act, was issued by the EPA and U.S. Army Corps of Engineers in June of 2015 and was immediately challenged by several states and private parties. A joint resolution approved by the Senate last November and by the House earlier this month largely along party-line votes, would have disapproved the rule under the Congressional Review Act and prevented the promulgation of a similar rule. But the President vetoed the resolution, meaning the fate of the rule now rests with the courts.

Several challenges to the rule are currently pending in various courts. Many states challenged the rule in district courts across the country shortly after promulgation.  Most district courts stayed or dismissed the lawsuits pending the Sixth Circuit’s decision in a separate action concerning whether the Clean Water Act gives circuit courts exclusive jurisdiction over challenges to the rule.  However, one district court in North Dakota, which issued an injunction against the rule in thirteen states, has kept the litigation in that court active despite the ongoing proceedings in the Sixth Circuit.

Meanwhile, the Sixth Circuit has separately stayed the rule nationwide while it considers the jurisdictional question. The circuit court found that the petitioners had a “substantial possibility of success” on the merits of their claims that the rule was at odds with the Supreme Court’s decision in Rapanos v. United States.  Many commentators expect the challenge to the rule itself to end up in front of the Supreme Court.

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

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About this Author

S. Keith Garner, Sheppard Mullin, Legal Specialist, environmental laws
Partner

Keith Garner, AICP, is a partner in the Real Estate, Land Use, Natural Resources and Environmental Practice Group in the firm's San Francisco office.

Areas of Practice

Mr. Garner's practice focuses on state and federal environmental laws, land use planning and entitlement procedures, and natural resources permitting issues for large residential, commercial and mixed use communities and energy generation and transmission projects, including wind and solar facilities. He provides legal and strategic planning advice to clients at every stage of the complex...

415-774-2991
James Rusk, land use attorney, sheppard mullin
Associate

James Rusk is an associate with the Land Use and Natural Resources practice group in the firm’s San Francisco office.

Areas of Practice

Natural Resources. Mr. Rusk represents residential, commercial and energy developers in natural resources permitting, regulatory compliance and litigation. He focuses on endangered species, wetlands, and storm water issues under federal and state law, in addition to compliance with the National Environmental Policy Act ("NEPA") and California Environmental Quality Act ("CEQA"). Because every project is inherently local, he complements his substantive knowledge with expertise in local development ordinances and procedures. He has worked on major projects all over the state, from the Bay Area to the Central Valley and Southern California.

415-774-3232