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GAO Report Finds USEPA Violated Law in Promoting Clean Water Rule

The U.S. Government Accountability Office released a report today finding that two social media campaigns operated by the U.S. Environmental Protection Agency violated federal laws against publicity, propaganda and grassroots lobbying by the agency. The violations occurred as part of USEPA’s efforts to adopt the Clean Water Rule defining the scope of “waters of the United States” under the federal Clean Water Act.

For a more detailed analysis of the report, you can see my article contained in the December 2015 issue of Global Water Intelligence, which will be published later this week.

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Judicial Panel Rejects Consolidation for Clean Water Rule Litigation

Yesterday I posted about the decision of the Sixth Circuit Court of Appeals to issue a stay of the new Clean Water Rule in response to litigation filed by 18 states and other groups. Not to let a day go by without action, this morning the United States Judicial Panel on Multidistrict Litigation denied consolidation of nine lawsuits across seven district courts. The federal government had moved for consolidation in the District of District of Columbia, and the state challengers had opposed that motion, arguing against consolidation or at least that consolidation take place in the District of North Dakota, Southern District of Georgia or Southern District of Texas.

In its Order Denying Transfer, the panel decided that consolidation would not further the just and efficient conduct of the litigation nor serve the convenience of the parties and witnesses. That conclusion was based on the nature of the litigation, with minimal discovery and limited pretrial proceedings, and most issues to be resolved as questions of law rather than fact. Additionally, the panel noted the different stages reached by the various lawsuits, which “would require the transferee judge to navigate potentially uncharted waters with respect to law of the case.” The decision means that resolution of challenges to the Clean Water Rule will remain complex and time-consuming, and continues the long tradition of using water metaphors in such cases. Water lawyers everywhere applaud both.

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Sixth Circuit Issues Nationwide Stay Against Clean Water Rule

The US Environmental Protection Agency and US Army Corps of Engineers adopted a new Clean Water Rule on June 29, 2015, to become effective on August 28, 2015. The Clean Water Rule defines the scope of “waters of the United States” under the federal Clean Water Act, and therefore determines the scope of federal regulatory programs such as the National Pollutant Discharge Elimination System, which governs point source discharges, and the Section 404 dredge and fill program for wetlands and other water bodies. I previously summarized the differences between the old and new Clean Water Rules here.

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Comparison of the Old and New Definitions of Waters of the United States

The recently issued definition of waters of the United States for purposes of the Clean Water Act continues to generate significant interest in the legal and popular worlds. Litigation has been filed against the new rule, by states and industry on one side, and by environmental advocates on the other side. Unless a court order is issued against the rule, the new definition will go into effect on August 28, 2015.

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Litigation on the Clean Water Rule

The US Environmental Protection Agency and US Army Corps of Engineers published their final Clean Water Rule earlier today regarding the scope of “waters of the United States” and the jurisdiction of the Clean Water Act. The Federal Register publication may be found here and here (PDF), and the USEPA website on the regulation here.