On Tuesday, May 26, 2015, EPA issued a long-awaited rule defining “Waters of the United States.” The final rule is available as a prepublication version. Elsewhere, on EPA’s Clean Water Rule webpage, there are a number of fact sheets and information intended to explain and support the rule as proposed. EPA apparently found this scope of detail and explanation necessary due to the significant opposition to the rule.
Even before publication, the rule had generated a great deal of opposition. The proposed definition has been viewed by a number of groups as effecting a broad expansion of federal authority over water-bearing bodies that had previously not been considered to fall within the definition of “Waters of the United States.” For example, the National Association of Manufacturers provides a detailed graphic on its website reflecting that Association’s view of the expansive nature of the rule.
A significant number of groups and organizations have expressed opposition to the proposed rule, and the U.S. House of Representatives passed legislation that would force the EPA and the Army Corps of Engineers to rewrite and modify the rule in consultation with the States. (Politico, May 27). The House enactment came before EPA’s final action, and the Senate is considering a similar measure. The White House has promised a veto.
Regardless, the rule is likely to be the subject of a court challenge as soon as it becomes effective. EPA’s action on Wednesday was the final required agency action. However, by its terms, the rule will not become effective until sixty days after publication in the Federal Register, which has yet to occur.