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Clean Water Rule Litigation Statement
EPA and the Department of the Army remain committed to strengthening coordination between the agencies and increasing transparency for clean water programs. On November 16, 2015, EPA Administrator Gina McCarthy and Assistant Secretary of the Army (Civil Works) Jo-Ellen Darcy issued a joint memorandum(3 pp, 541 K, About PDF) to their staff directing that the agencies work together to improve implementation of the national Clean Water Act section 404 program. These measures will improve transparency, strengthen the coordination processes between the agencies, increase public participation, promote use of the best available science and technical data for making case-specific significant nexus determinations, and promote public health and environmental protection for all Americans who depend on reliable and abundant sources of clean water. These steps will be taken under the agencies' existing regulations and policies and be consistent with the stay of the Clean Water Rule issued by the Sixth Circuit Court of Appeals.
On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed the Clean Water Rule nationwide pending further action of the court. EPA and the Department of the Army are fully complying with the stay. The court acknowledges that clarification of the Clean Water Act is needed and that “agencies conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-reviewed science, to promulgate new standards to protect water quality that conform to the Supreme Court’s guidance.”
In response to this decision, EPA and the Department of Army resumed nationwide use of the agencies’ prior regulations defining the term “waters of the United States.” Those regulations will be implemented as they were prior to August 27, 2015, by applying relevant case law, applicable policy, and the best science and technical data on a case-by-case basis in determining which waters are protected by the Clean Water Act.
The agencies look forward to vigorously defending the merits of the Clean Water Rule, which the agencies continue to believe is fully consistent with the law and based on the best available peer-reviewed science.
The Clean Water Rule was developed by the agencies to respond to an urgent need to improve and simplify the process for identifying waters that are and are not protected under the Clean Water Act, and is based on the latest science and the law. The Clean Water Rule represents the agencies’ continuing commitment to protecting and restoring the nation’s water resources that are vital for our health, environment, and economy.