Clean Water Rule Opens Litigation Floodgates -

With much fanfare, EPA and the Army Corps of Engineers (“Corps”) recently issued a final rule clarifying which bodies of water are “waters of the United States” protected under the Clean Water Act (“CWA”). Coming in the wake of the Supreme Court’s confusing decision in Rapanos, the so-called “Clean Water Rule” was issued to, among other things, make it easier to determine when waters are subject to federal jurisdiction. The litigation floodgates were opened the day the rule was issued. Sixteen States immediately filed suit to challenge the rule in U.S. district court in Texas, and a coalition of 13 States filed suit just days later in U.S. district court in North Dakota. Plaintiffs argue the CWA provides States with primary regulatory authority over such waters, and that the final rule significantly expands federal jurisdiction in an unconstitutional manner.