On January 18, 2023, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Department (Army) issued a final rule (the 2022 rule), the Clean Water Act (CWA). Federal GazetteAs we have previously reported, the 2022 rules will reset the regulatory environment to reflect pre-2015 definitions of terms (commonly referred to as the ‘1986 rules’), and the traditional navigable waters, Includes protection of territorial waters, interstate waters, and upstream waters. Anything that “significantly affects” waters that would normally be considered federal jurisdiction under the Commerce Clause.
The 2022 Rules will come into force on March 20, 2023. Legal challenges from industry and the state of Texas have already begun, although no final decision has been made. As expected, the agriculture, housing and oil and gas industries argue that the 2022 rules are arbitrary and capricious, an attempt to give the CWA jurisdiction over dry land and water features. . The Texas Attorney General has argued that the rule violates the Fifth and Tenth Amendments and the Commerce Clause. Both lawsuits allege violations of the Administrative Procedure Act.
Future plaintiffs may also seek a preliminary injunction barring the rules before they take effect. If suspended, the 2022 rule will be remanded to the EPA and Army for more administrative processes and public comment. However, pending litigation may never reach a decision on the merits. . Sacket II First half of 2023.
