Set to go into effect on Aug. 28, 2015, the final rule defining “Water of the United States” continues to generate increasing controversy as public and private interests alike across the country begin to seek judicial relief to prevent implementation. We have noted in previous posts that push-back from both the regulated community and members of Congress was almost immediate following the initial release of the rule on May 27, 2015. But the latest revelations from internal memos from the U.S Army Corps of Engineers to EPA prior to release contending that the rule was legally indefensible has resulted in a wave of new allegations. It has been reported that in one Corps communication only two weeks before the final rule was released, Major General John Peabody, the Corps’ Deputy Commanding General for Civil and Emergency Operations, wrote to Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy, saying, “Corps data to EPA has been selectively applied out of context, and mixes terminology and disparate data sets. In the Corps [sic] judgment, these documents contain numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies and logical inconsistencies.”
In the wake of these and other developments, numerous trade associations and other organizations across the country have asked EPA and the Corps to postpone implementation. In addition, by letter, no less than 30 state attorneys general have also asked the agencies to delay implementation to give the courts time to review the legal arguments raised against the rule. Further, just this week, 13 states filed a motion in U.S. District Court for the District of North Dakota seeking a preliminary injunction against EPA and the Corps to prevent the rule from going into effect. In their response, the agencies have requested that the Court hold off on proceeding with the matter, arguing that this and other cases should all be consolidated into one proceeding.
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