August 19, 2019

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Corps and EPA Push Out Effective Date of Disputed Clean Water Rule

The U.S. Army Corps of Engineers and the Environmental Protection Agency published a rule postponing the effective date of the Clean Water Rule for two years, until February 6, 2020.

The Clean Water Rule defined the extent of jurisdiction under the Clean Water Act. It was supposed to have become effective on August 28, 2015, but was immediately challenged in multiple lawsuits and was eventually stayed nationwide by the Sixth Circuit. Disputes on the merits were put on hold while the courts decided whether the cases should proceed in the district courts or in the appellate courts.

The U.S. Supreme Court resolved that question in January, unanimously concluding that challenges belong in district courts. The resumption of litigation in district courts created the possibility that the Clean Water Rule would be stayed in some states but effective in others. The final rule postponing the effective date means that the pre-Clean Water Rule regulations will apply uniformly throughout the country.

The deferral is the latest action by the two agencies on the disputed rule. Following an executive order issued on February 28, 2017, the agencies announced a two-step process that would first rescind the Clean Water Rule and then develop a new rule defining “waters of the U.S.” — the term used to describe federal jurisdiction over aquatic areas — in accordance with the Scalia opinion in the Rapanos case. In June of 2017, the agencies took the first step and proposed rescinding the Clean Water Rule. This rulemaking is ongoing, and the timing of the second step has yet to be announced.

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

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About this Author

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...

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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 development process, including due diligence for land acquisition, project planning and permitting, regulatory compliance, and land use litigation. He handles a wide range of state and federal regulatory matters, including endangered species, wetlands, water quality and land use issues, initiatives and referendums, environmental review under the California Environmental Quality Act (CEQA) and the National Environmental Policy Act (NEPA), Williamson Act contracts, and State Lands issues. He frequently manages the interdisciplinary teams needed to address the regulatory requirements and permit conditions.

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