EPA Clean Water Rule Stayed Nationally.

The Environmental Protection Agency (EPA) developed a new "Clean Water Rule" detailing the EPA's jurisdiction under the Clean Water Act (CWA) with an effective date of August 28, 2015.  The CWA governs discharges into "navigable waters of the United States" and the rule was EPA's attempt to define it's jurisdiction over such waters.  However, the rule became subject to numerous legal challenges and legislative attempts to block or eliminate it based on the rule expanding the EPA's jurisdiction over navigable waters and other waters associated with navigable waters, including "tributaries" and "adjacent waters" which are now jurisdictional if there is a "significant nexus" to a water of the United States.  Under the rule, there is no "hydrologic connection" necessary to establish a significant nexus.  Any water with a bed and bank and an "ordinary high water mark" that contributes flow directly or indirectly to a navigable water may have the required nexus.  Due to confusion surrounding the rule's requirements and various legal challenges to it, the court issued a nationwide injunction staying the rule immediately.  The court determined that the 18 states challenging the rule had a substantial likelihood of success on the merits that the rule violated established Supreme Court precedent on the issue of EPA jurisdiction, and that the rule's promulgation likely violated the Administrative Procedure Act.  Briefing continues on the issue of whether the court has jurisdiction to consider the merits of the challenge to the rule.  State of Ohio, et al. v. United States Army Corps of Engineers, et al., Nos. 15-3799/3822/3853/3887, 2015 U.S. App. LEXIS 17642 (6th Cir. Oct. 9, 2015).  In a related action, a federal Joint Panel on Multidistrict Litigation (MDL) established for the purpose of coordinating discovery and pre-trial procedure in the litigation filed in numerous courts, denied the EPA's request to consolidate the nine district court cases in the District of Columbia.  The court noted that little discovery was required and that the cases were procedurally postured differently.  In re Clean Water Rule:  Definition of "Waters of the United States," MDL No. 2663, 2015 U.S. Dist. LEXIS 140117 (Oct. 13, 2015).