This week, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) released the Clean Water final rule, which will define “Waters of the U.S.” subject to federal regulation under the Clean Water Act. The final rule is being released nearly 14 months after it was proposed in March of 2014. EPA received more than one million comments in response to the proposed rule, and Congress has become increasingly vocal in their opposition to the rule. Earlier this month, the House passed legislation to stop the rule, as well as included language in the Energy and Water Appropriations bill to prohibit funds from implementing the rule. The Senate has also introduced legislation that would stop the rule and strictly prescribe steps for the EPA and Corps on how the agencies should move forward with creating a new rule. Congress will have 60 days after its publication to utilize the Congressional Review Act to stop the rule from implementation. While the final rule does address some of the issues raised by RCRC and other stakeholders during public comment by providing explicit exemptions for storm water control features and waste water treatment systems, the rule still allows EPA and the Corps significant leeway in determining whether other, non-exempt waters have a significant nexus to federal waters. Barring an act of Congress and approval by the President, the final rule will become effective 60 days after its publication in the Federal Register.
