The Clean Water Act applies to "Waters of the United States," a term that the Environmental Protection Agency ("EPA") and the Army Corps of Engineers sought to define through a new final rule. On August 27, 2015, the day before the "Waters of the United States" Rule ("Rule") would have become effective, Judge Ralph Erickson of the District Court of North Dakota issued an Order ("Order") to stop the Rule on the grounds that it is likely arbitrary and capricious as it lacks a "rational connection between the facts found and the Rule as it will be promulgated." The Rule has been contested by several states and industry bodies. For example, the National Cattlemen's Beef Association blasted the Rule, writing that it "is nothing more than an attempt to put more land and water under federal jurisdiction, blatantly disregarding private property rights."
EPA has announced the Rule will be implemented in the states that are unaffected by Judge Erickson's Order. Therefore the Rule will not apply to the following states: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, North Dakota, South Dakota, and Wyoming. EPA's view is that "EPA and the U.S. Army are ensuring that waters protected under the Clean Water Act are more precisely defined, more predictable, easier for businesses and industry to understand, and consistent with the law and the latest science." For more information regarding this Rule, see our previous Update.
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